United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
early 2016, Plaintiff Monsanto Production Supply LLC sued
Defendant Rick Rosentreter, a Central Illinois farmer, for
allegedly using Monsanto's proprietary seeds without
authorization, interfering with Monsanto's contractual
relations, and being unjustly enriched as a result (d/e 1).
After Rosentreter repeatedly frustrated Monsanto's
discovery efforts and repeatedly disobeyed the Court's
discovery orders, Monsanto filed a motion for sanctions (d/e
45). The Court orally granted Monsanto's motion in July
2016 and followed up on August 9, 2016 with a written order
and opinion (d/e 57).
written order, the Court granted Monsanto's request for
default judgment against Rosentreter and granted in part
Monsanto's request for a permanent injunction against
Rosentreter. (Rather than entering a permanent injunction
barring Rosentreter from using seeds containing
Monsanto's patented biotechnology, the Court entered a
temporary injunction pending further hearing on whether a
permanent injunction would force Rosentreter to abandon
farming altogether given the ubiquity of Monsanto's seeds
in the farming industry.)
has now filed a Motion for Certification of Permissive Appeal
(d/e ). Rosentreter asks the Court to “certify for
permissive interlocutory appeal the issue which was presented
[to the Court] on July 15, 2016” (d/e 60 at 1).
Essentially, Rosentreter seeks leave to file an interlocutory
appeal of the Court's ruling on Monsanto's motion for
relevant statute states:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an intermediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing such order. …
28 U.S.C. § 1292(b). To certify an interlocutory appeal
under Section 1292(b), “there must be a question of
law, it must be controlling, it must be
contestable, and its resolution must promise to
speed up the litigation.” Ahrenholz v. Bd.
of Trustees, 219 F.3d 674, 675 (7th Cir. 2000) (emphasis
in original). The Court “may not and should not”
certify an order for interlocutory appeal under Section
1292(b) “[u]nless all these criteria are
none of the criteria are satisfied. In the Section 1292(b)
context, “question of law” refers to “a
question of the meaning of a statutory or constitutional
provision, regulation, or common law doctrine.”
Id. at 676. But there is no statutory or
constitutional provision, regulation, or common law doctrine
whose meaning is at issue here. When a party “fails to
obey an order to provide or permit discovery, ” Rule
37(b) authorizes a court to “render a default
judgment against the disobedient party.” Fed.R.Civ.P.
37(b)(2)(A)(vi). Consistent with that authorization, the
Court awarded default judgment to Monsanto after Rosentreter
repeatedly disobeyed the Court's discovery orders.
Accord Newman v. Metro. Pier & Exposition Auth.,
962 F.2d 589, 591 (7th Cir. 1992) (“A [defendant's]
failure to comply with discovery orders is properly
sanctioned … by entry of a default judgment.”).
The Court's straightforward decision to award default
judgment in Monsanto's favor did not require the Court to
resolve a “question of law, ” let alone a
“controlling” or “contestable” one.
allowing Rosentreter to appeal would not expedite this case.
Because such an appeal would not present a contestable,
controlling issue of law for the Seventh Circuit to resolve
in Rosentreter's favor, the appeal would delay, not
expedite, this case's resolution.
brief, Rosentreter argues, as he has before, that he at least
partially complied with Monsanto's discovery
requests, and that Rule 37(d) “does not provide relief
for partial-or for arguably inadequate-responses to
discovery” (d/e 59 at 1), citing once again to cases
that refer to Rule 37(d). See Israel Aircraft Indus.,
Ltd. v. Standard Precision, 559 F.2d 203, 208 (2d Cir.
1977) (“subdivision (d) of Rule 37 applies only where
there has been a complete failure to comply with
discovery”); Fox v. Studebaker-Worthington,
Inc., 516 F.2d 989, 995 (8th Cir. 1975) (“Rule
37(d) sanctions only apply where there is a total
non-compliance with discovery”).
Court rejected this argument when Rosentreter presented it in
his response to Monsanto's motion for sanctions, and for
good reason: Monsanto sought default judgment not under Rule
37(d), but under Rule
37(b), which allows a court to
“render a default judgment” as a sanction for
failing to obey a discovery order. As outlined at length in
the Court's August 9, 2016 order and opinion, Rosentreter
repeatedly and without justification disobeyed this
Court's discovery orders. The Court's default
judgment award was therefore appropriate.
also cites a set of cases in which the Seventh Circuit
upheld a district court's default judgment (or
dismissal) order. See Hal Commodity Cycles Mgmt. Co. v.
Kirsch, 825 F.2d 1136, 1139 (7th Cir. 1987) (affirming
denial of motion to vacate default judgment, which district
court had entered after 3 years of defendant's
“dilatory conduct”); Newman v. Metro. Pier
& Exposition Auth., 962 F.2d 589 (7th Cir. 1992)
(affirming dismissal under Rule 37(d) after plaintiff
repeatedly failed to appear for her deposition); Domanus
v. Lewicki, 742 F.3d 290 (7th Cir. 2014) (affirming
default judgment based on defendants' “clear record
of delay or contumacious conduct” and
“willfulness, bad faith, or fault”).
argues that his own conduct doesn't come “even
remotely close” to the recalcitrant parties'
conduct in the cases he cites (d/e 59 at 5). But the Seventh
Circuit has said that a court may award default judgment
“as soon as a pattern of noncompliance with the
court's discovery orders emerges, ” as long as the
court remains “guided by the norm of proportionality
that guides all judicial applications of sanctions.”
Newman, 962 F.2d at 591. Here, the sanction of
default judgment was proportional to Rosentreter's
pattern of noncompliance in the form of his repeated and
unjustified disobedience of the Court's discovery orders
and his repeated lies and misrepresentations, which the Court
has already described at length. (See August 9, 2016
Order and Opinion, d/e 57.)
motion (d/e 60) is accordingly DENIED. As stated in the
Court's August 9, 2016 order, the parties shall confer
and then inform the Court regarding a desired date for a
hearing at which the Court will hear evidence concerning (a)