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Colon v. Town of Cicero

United States District Court, N.D. Illinois, Eastern Division

January 17, 2017

WANDA COLON, as Administrator of the Estate of CESAR MUNIVE, deceased, Plaintiff,
TOWN OF CICERO, et al., Defendants.


          JORGE L. ALONSO United States District Judge

         Before the Court are defendants' objections [540] and [541] and plaintiff's cross-objections [543] to Magistrate Judge Schenkier's Report and Recommendation of October 14, 2016 [533] regarding plaintiff's motion for evidentiary sanctions. For the reasons set forth below, defendants' objections are overruled and plaintiff's cross-objections are also overruled. Judge Schenkier's Report and Recommendation is adopted in its entirety, and plaintiff's motion for evidentiary sanctions [363] is granted.


         Judge Schenkier recommended that plaintiff's motion for sanctions be granted and that (1) discovery should be re-opened to allow (a) Dr. Galatzer-Levy to examine the reports of Drs. Frank, Pua, and Reff, to determine whether, based on those reports, he wishes to issue a supplemental report;[1] (b) plaintiff to further depose defendant Garrity for a period not to exceed three hours, to question him on any disclosures she received in April, June, and August 2016 that had not previously been disclosed to her;[2] (c) Cicero to obtain and produce transcripts from two Pension Board hearings on Garrity's application; (d) Garrity to produce his amended pension application, if one exists, and (2) a $5, 000 fine be imposed on Garrity and a $5, 000 fine be imposed on Cicero, to be paid to the Clerk of the Court.


         “When a magistrate judge prepares a report and recommendation for a district court, the governing statute provides that the district court ‘shall make a de novo determination' with respect to any contested matter.” Kanter v. C.I.R., 590 F.3d 410, 416 (7th Cir. 2009) (quoting 28 U.S.C. § 636(b)). The Court of Appeals has observed:

De novo review requires the district judge to decide the case based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge's conclusion. The district judge is free, and encouraged, to consider all of the available information about the case when making this independent decision. A district judge may be persuaded by the reasoning of a magistrate judge or a special master while still engaging in an independent decision-making process.

Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)). The district judge makes the ultimate decision to adopt, reject, or modify the magistrate judge's recommendation. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009); see also Fed. R. Civ. P. 72.


         On July 5, 2012, Cicero Police Officer Donald Garrity was involved in an incident during which he shot and killed Cesar Munive. Plaintiff, the Administrator of Munive's estate, has sued the Town of Cicero and Officer Garrity for wrongful death, excessive force, and negligent hiring.


         “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e) . . . the court . . . (A) may order payment of the reasonable expenses, including attorney's fees caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37(c)(1). “Federal Rule of Civil Procedure 37(b)(2)(A) grants the district courts . . . ‘wide latitude in fashioning appropriate sanctions'” for violating discovery orders. e360 Insight, Inc., v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011) (quoting Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir. 1999)).


         Defendant Garrity acknowledges that he should have provided copies of the pension board's decision to defense counsel and that they also should have been disclosed to plaintiff earlier in the proceeding. (Garrity's Obj. at 2.) Garrity does not object to plaintiff's expert (Dr. Galatzer-Levy) reviewing Drs. Frank, Pua, and Reff's reports and issuing a supplemental report. (Id.) Garrity objects to the recommendation that he sit for an additional three-hour deposition, and he asks the Court to limit any reopened deposition to one hour. (Id.) Garrity also objects to the recommendation of a $5, 000 fine. (Id. at 3.) Specifically, Garrity states that he sat for three previous depositions for a total of twelve hours, and three additional hours related to eighteen pages of documentation is excessive. (Id. at 9.) Further, Garrity disagrees with Judge Schenkier's finding that defendants “steadfastly refused to provide information, ” arguing that such a description mischaracterizes defendants' motivation, conduct, and concerns regarding plaintiff's ...

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