United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
Allisah Love tried to pick up a friend's car at the
Chicago impound lot in November 2007. R. 329, Third Am.
Compl. ¶¶ 68, 93, 95. That visit to the impound lot
gave rise to this lawsuit against the City of Chicago and
four Chicago police officers, Niyell Powell, April Fisher,
Iris Houston, and Glenn Davis. At this stage of the
litigation, the remaining claims are a false arrest and
detention claim under the Fourth Amendment, 42 U.S.C. §
1983, as well as state-law claims for false arrest, false
imprisonment, and malicious prosecution. Love alleges that
the Defendant officers violated her Fourth Amendment rights
when they seized and arrested her without cause, based only
on the complaint of an off-duty officer working at the
impound lot, despite Love having contacted police herself.
Third Am. Compl. ¶¶ 83, 89-93. Love argues that she
is entitled to a default judgment for alleged discovery
violations under Federal Rule of Civil Procedure 37(e). In
the alternative, Love moves for summary judgment under
Federal Rule of Civil Procedure 56. R. 478, Pl.'s Br. For
the following reasons, both of the Love's motions are
denied, and at the next status hearing, the Court will
discuss trial scheduling with the parties.
original allegations amounted to 15 counts, more than 19
defendants, and events spanning over a decade. See
Third Am. Compl. In a May 2015 opinion, the Court dismissed
all of the claims and defendants except for the remaining
five defendants and the claims arising out of Love's
arrest at the United Road Towing impound lot. R. 384, 5/7/15
Opinion and Order at 37-38. In evaluating Love's summary
judgment motion, the facts are viewed in the defense's
favor, and the defense is entitled to reasonable inferences.
November 2007, Love went to a City of Chicago Auto Pound with
Uylonda Henderson, Eddie Brantley, and Christopher Grooms to
retrieve Henderson's car. Pl.'s Br. ¶ 78;
id. Exh. SS, COC000018. When lot employees tried to
drive Henderson's car out of its spot, the car would not
start, presumably because the battery was dead. Third Am.
Compl. ¶ 69. Brantley asked if he could either bring his
car into the lot or push Henderson's car out of the lot
so that he could jump-start her car with his own.
Id. ¶ 72. The lot's employees told the
group that neither was allowed, and that Henderson would need
to pay a tow truck to move her car the 20-30 feet out of the
lot. Id. ¶ 73.
attempt to get help from a manager of the lot, Love went
inside the trailer that housed the lot's personnel. Third
Am. Compl. ¶¶ 75-76. There, Defendant Powell-an
off-duty Chicago Police Department officer-was working as a
security guard. R. 489, Defs.' Statement of Add. Facts
(DSOF) ¶ 5. When Love asked for his name, Powell falsely
identified himself as “Officer Muhammed.”
Pl.'s Br. ¶ 112; id. Exh. N, Powell Dep. at
38:23-24, 39:1-3; AL00026, Track 2, 00:49:44-00:51:13. During
the exchange, Powell asked Love to leave the trailer, after
explaining that only car owners were allowed inside.
See Pl.'s Br. ¶ 127; AL00026, Track 2,
00:49:44-00:51:13. According to Love, Powell did not
ask Love to leave the impound lot itself-just the trailer-and
Love contends that she promptly left. Pl.'s Br. ¶
127. As detailed later in this Opinion, however,
when viewed in Powell's favor, the video and audio of the
interaction is not clear on this point, and Love stays in the
trailer for at least 35 seconds after the request, debating
her right to retrieve the car, and engaging in further
discussion with Powell. AL00026, Track 2 00:50:35-51:19.
leaving the trailer, Love called 911 a couple of times. In
one call, she requested police assistance at the impound lot,
explaining that Powell, who had said he was a Chicago Police
Officer, refused to get a manager for her and that lot
personnel would not let them jump-start Henderson's car.
See AL00207, Tracks 2-3. She also asked for the
phone number for the Office of Professional Standards
(OPS)to report him. Id. In another call
to 911, Love asked the dispatcher to send a police sergeant
to the lot. Id. at Track 1. In this call, Love said
that Powell called the police on her after she mentioned that
she would be contacting OPS. Id. Indeed, Powell did
also call 911, requested police assistance, and reported that
Love was “being very belligerent and cursing me
out.” Pl.'s Br. ¶107; AL00207, Track 4; DSOF
¶ 5. The dispatcher asked if Love had physically
threatened Powell, and he said, “She said she'd
call OPS on me.” AL00207, Track 4. When later again
asked if he had been threatened, Powell replied,
April Fisher and Iris Houston received a dispatch at 8:59 pm
asking for police assistance at the Auto Pound. DSOF ¶
6; R. 488, Defs.' Summ. J. Resp. Br. Exh. 6. Sometime
after Love made the 911 call in which she asked for a
sergeant, Chicago Police dispatched Sergeant Glenn Davis to
the lot. DSOF ¶ 15. Sergeant Davis spoke with Officers
Fisher and Houston when he arrived. Id. ¶ 17.
At this point, according to the on-duty officers on scene,
none of them-including Davis, Houston, or Fisher-knew from
the dispatch or investigation that Love had also called 911
for police assistance, nor that Powell had given Love a fake
name. Id. ¶¶ 21-22. Love claims that the
officers never spoke to her about her complaints or to ask
her what had happened. Pl.'s Br. ¶ 146, 150; Third
Am. Compl. ¶¶ 91-92. Officers Houston and Fisher
arrested Love, based on Powell's allegations and Sergeant
Davis's approval, and charged her with a misdemeanor
offense of criminal trespass to state supported land under
720 ILCS 5.0/21-5. Pl.'s Br. ¶ 79; DSOF ¶ 1,
19; DSOF Exh. 1. The officers used an emergency handcuffing
technique, because they contend that Love resisted cuffing,
DSOF ¶ 20, which Love disputes. Pl.'s Rep. Br. at 5.
was released from custody the next day. DSOF ¶ 24. Soon
after her arrest, Love (and others) filed a federal-court
suit and successfully asked the emergency judge to order the
City to preserve “911 intake calls, dispatch tapes and
event entries” from the Office of Emergency Management
& Communications and the Office of Professional
Standards, as well as “security video/tapes from the
City of Chicago Auto Pound” from November 20, 2007.
Mot. for Misc. Relief, Grooms et al. v. Tencza et
al., No. 1:07-cv-6176 (N.D. Ill. Nov. 21, 2007) ECF No.
30; Minute Entry on Mot. for Misc. Relief, Grooms et al.
v. Tencza et al., No. 1:07-cv-6176 (N.D. Ill. Nov. 29,
2007) ECF No. 34. But that order was later vacated due to
lack of notice to the defendants. Minute Entry on Mot. to
Vacate, Grooms et al. v. Tencza et al., No.
1:07-cv-6176 (N.D. Ill.Dec. 20, 2007) ECF No. 38. The judge
assigned to the 2007 case denied Love's later request to
reinstate the preservation order, because the City had
already stated that it would preserve all of the data within
its possession. R. 487, Defs.' Resp. to Mot. Default
J., Exh. A. He referred the parties to a magistrate judge for
all discovery matters. Later hearings before the magistrate
judge dealt with the production and quality of the United
Road Towing video; the City contends that Love did not make
other specific preservation requests during these hearings.
Id. Exhs. B, C, D. At an August 2008 hearing, the
magistrate judge ordered the City's counsel to contact
United Road Towing to “inquire about quality of audio
and video tape previously produced and to determine whether
audio and video exists for outside of the building.”
Id. Exh. D. The City emailed Love later that day,
informing her that it had spoken with United Road Towing,
which agreed to provide the best copies available from both
inside and outside the lot's trailer. Id. Exh.
January 2008, Love's criminal case was stricken with
leave to reinstate. DSOF ¶¶ 26-27. After various
procedural twists and turns, Love's civil case was
reassigned to this district judge. The remaining sets of
claims are (1) under 42 U.S.C. § 1983, a Fourth
Amendment claim for false arrest and detention; and (2)
state-law claims for false arrest, false imprisonment, and
malicious prosecution. 5/7/15 Opinion and Order at 37-38.
(Also, the City remains in the case for an indemnification
claim.) Love moves for a default judgment or, in the
alternative, summary judgment, on each of her claims.
Standards of Review
first request is for a default judgment for alleged discovery
violations. A default judgment might be an appropriate
sanction when a party failed to take reasonable steps to
preserve electronically stored information relevant to the
litigation, and its later loss or destruction cannot be
restored through additional discovery. See Fed. R.
Civ. P. 37(e). If the loss of evidence prejudices the other
party, then the court may “order measures not greater
than necessary to cure the prejudice.” Fed.R.Civ.P.
37(e)(1). If the court finds that the party
intentionally deprived the other party of the
evidence, then the court may sanction the withholding side by
issuing a negative presumption, dismissing the action (if the
violation is committed by the plaintiff), or entering a
default judgment. Fed.R.Civ.P. 37(e)(2). A default judgment
is an appropriate sanction where (1) there is “a clear
record of delay or contumacious conduct”; (2) where
“other less drastic sanctions have proven
unavailing”; or (3) where a party displays
“willfulness, bad faith, or fault.” Domanus
v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (quoting
Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.
2003), overruled on other grounds by Ramirez v. T&H
Lemont, Inc., 845 F.3d 772, 781 (7th Cir. 2016)).
other motion brought by Love is for summary judgment. In
deciding Love's motion for summary judgment, the Court
views the evidence in the light most favorable to the
non-moving party (here, the defense). Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Summary judgment must be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A genuine issue of material
fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In evaluating summary judgment motions, courts must
view the facts and draw reasonable inferences in the light
most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). The Court may not
weigh conflicting evidence or make credibility
determinations, Omnicare, Inc. v. UnitedHealth Grp.,
Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must
consider only evidence that can “be presented in a form
that would be admissible in evidence.” Fed.R.Civ.P.
56(c)(2). The party seeking summary judgment has the initial
burden of showing that there is no genuine dispute and that
they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460
(7th Cir. 2010); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539
F.3d 629, 634 (7th Cir. 2008). If this burden is met, the
adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
Motion for Default Judgment
addressing the motion for default judgment, the Federal Rules
grant the district court substantial discretion over
sanctions for discovery violations. Fed.R.Civ.P. 37(b)(2)(A);
see e360 Insight, Inc. v. Spamhaus Project, 658 F.3d
637, 642 (7th Cir. 2011) (“[D]istrict courts have wide
latitude in fashioning appropriate sanctions.”)
(citation omitted). The entry of a default judgment is one of
the most severe sanctions, and is generally appropriate only
where a party has acted in bad faith, has willfully failed to
comply with a discovery order, or has failed to comply with a
discovery order due to the party's own fault.
Nat'l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 640 (1976) (per curiam). Bad faith comprises
conduct that is “either intentional or in reckless
disregard of a party's obligations to comply with a court
order.” Marrocco v. Gen. Motors Corp., 966
F.2d 220, 224 (7th Cir. 1992). Similarly, fault suggests
“objectively unreasonable behavior” rather than a
“mere mistake or slight error in judgment.”
Long v. Steepro, 213 F.3d 983, 987 (7th Cir. 2000).
In the Seventh Circuit, a district court must determine by a
preponderance of the evidence that at least one of these
blameworthy findings applies in order to impose the most
severe sanctions. See e360 Insight, 658 F.3d at 642;
Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 777
(7th Cir. 2016). A party's genuine and faultless
inability to comply generally should not be sanctioned.
See Ramirez, 845 F.3d at 776; Nat'l Hockey
League, 427 U.S. at 640.
Love is alleging that the City of Chicago failed to preserve
pertinent ordered discovery, sanctions are evaluated under
Rule 37. To award sanctions, this Court must determine that:
“1) the ‘failing to produce' party had a duty
to preserve or produce documents; 2) the ‘failing to
produce' party breached that duty or obligation to
preserve or produce documents; 3) the culpability for the
breach rises to a level of willfulness, bad faith or fault;
4) the party seeking production suffered prejudice as a
result of the breach; and 5) an appropriate sanction can
ameliorate the prejudice from the breach.” Porche
v. Oden, 2009 WL 500622, at *5 (N.D. Ill. Feb. 27,
2009). Specifically at issue is the City's alleged
failure to preserve electronically stored information on
Love's arrest, a responsibility that generally would have
been triggered in 2007 when the arrest at the impound lot
occurred. Thus, the version of Rule 37(e) in effect at that
time controls. See Elustra v. Mineo, 595 F.3d 699,
703 (7th Cir. 2010) (“Since the amendments are not
retroactive, we apply the Federal Rules as they existed at
the time.”). The 2007 version of Rule 37(e) stated,
“Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party failing to
provide electronically stored information lost as a result of
the routine, good-faith operation of an electronic
information system.” Fed.R.Civ.P. 37(e) (2006) (amended
motion alleges that the City committed four discovery
violations.Specifically, Love argues the City failed
to (1) preserve and produce recordings of Love's calls to
the OPS from November 20, 2007; (2) preserve and produce
recordings of Love's calls to 311 (Chicago's
non-emergency number) from November 20, 2007; (3) obtain a
video-and-audio synchronized copy of the interior and
exterior security footage from United ...