United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
STEPHEN C. WILLIAMS UNITED STATES MAGISTRATE JUDGE
se Plaintiff James Tolbert brought the present lawsuit
for violations of his civil rights during his incarceration
with the Illinois Department of Corrections. This matter is
before the Court on a Motion for Sanctions (Doc. 25) filed by
Defendants. Defendants ask the Court to dismiss
Plaintiff's suit for failure to appear for his
deposition, and to award them $150.00 to cover deposition
expenses. (Doc. 25, p. 4). As discussed below, the
undersigned RECOMMENDS that the district
GRANT Defendants' motion in
December 8, 2017, Defendants filed the motion at bar. (Doc.
25). On December 13, 2017, the Court set the motion for a
hearing on January 11, 2018. (Doc. 26). The notice of hearing
indicated that Plaintiff may appear either in person or by
telephone, but that “Failure to appear by
Plaintiff may result in dismissal of his case
for lack of prosecution.”
(Id.). On January 11th, the Court held the hearing
as noticed. (Doc. 29). While counsel for Defendants appeared,
Plaintiff did not. (Id.).
hearing, counsel for Defendants indicated that
Plaintiff's deposition had been noticed on two separate
occasions. On the first occasion, the deposition was noticed
for the Attorney General's office in Chicago, but had to
be cancelled at the last minute due to logistical issues.
Defendants then noticed Plaintiff's deposition a second
time at the Attorney General's Springfield office.
Plaintiff did not appear for the second deposition.
counsel stated that Plaintiff called him on December 15,
2017, after receiving the Motion for Sanctions. Plaintiff
indicated that he received the first notice and appeared for
the deposition in Chicago. Defense counsel could not verify
this claim with anyone in the Chicago office, however.
Plaintiff then claimed that he did not appear for the second
deposition because it was in Springfield. The most recent
address provided by Plaintiff indicates that he resided in
Evanston, Illinois. (See Doc. 15). When pressed on
this statement by defense counsel, Plaintiff apparently then
said that he did not appear for the second deposition because
he did not receive notice of it.
counsel advised Plaintiff of the January 11th hearing on the
Motion for Sanctions and on December 19, 2017, sent him a
letter confirming their conversation. (Doc. 29-1). The letter
states, in part, as follows:
We spoke briefly on the phone last week regarding the lawsuit
you filed in the Southern District of Illinois. As a
reminder, the Court has scheduled a telephone hearing on
Defendants' motion for sanctions. At that hearing, you
may explain to the Court your reasons for not appearing at
the November 29, 2017 deposition scheduled in Springfield,
(Id. at 1). The remainder of the letter consisted of
a copy of the Court's notice setting the Motion for
Sanctions for hearing. (Id.).
to Rule 37(d), a court may sanction a party for failing to
appear for a properly noticed deposition. Fed.R.Civ.P.
37(d)(1)(A). Such sanctions may include dismissal the action,
and must include reimbursement of deposition expenses, unless
the failure to appear was “substantially justified or
other circumstances make an award of expenses unjust.”
Fed.R.Civ.P. 37(d)(3). In addition, Under Rule 41(b), a court
may dismiss an action with prejudice “if the plaintiff
fails to prosecute or to comply with [the Federal Rules] or a
court order.” Fed.R.Civ.P. 41(b). A district court
should dismiss a suit under Rule 41(b) “when there is a
clear record of delay or contumacious conduct, or when other
less drastic sanctions have proven unavailing.”
Salata v. Weyerhauser Co., 757 F.3d 695, 699 (7th
Cir. 2014) (quoting Webber v. Eye Corp., 721 F.2d
1067, 1069 (7th Cir. 1983)) (internal quotations omitted).
District courts also have an inherent power to dismiss suits
due to a plaintiff's failure to prosecute. Link v.
Wabash Railroad Co., 370 U.S. 626, 629, 82 S.Ct. 1386,
8L.Ed.2d 734 (1962). This power is necessary in order to
prevent unnecessary delays in disposing of pending cases and
to avoid clogging the district courts' calendars.
Id. at 629 - 30.
clear to the undersigned that Plaintiff has little interest
in litigating this matter. Plaintiff has failed to respond to
the Motion for Sanctions and when given the opportunity to
appear in person or by telephone, Plaintiff failed to appear
for the January 11th motion hearing. Having no reason to
disbelieve him, the Court takes defense counsel's
representations as true, and it is clear that Plaintiff had
notice of the motion hearing. Plaintiff was orally advised of
the hearing by defense counsel, he was sent a notice by the
Court, and defense counsel sent him notice in the letter. The
written notices clearly advised Plaintiff of the potential
consequences for failing to appear. Even if Plaintiff is no
longer residing at the address provided to the Court, a
change in address does not absolve his failure to appear. He
was previously warned that he has an obligation to keep the
Court advised of any changes in his address, and that failure
to do so could result in dismissal of his suit. (See
Doc. 6, p. 7). Therefore, the undersigned finds that
Plaintiff had adequate warning of the consequences of failing
to notify the Court of a new address and of failing to appear
for the January 11th hearing. See Ball v. City of
Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (holding
“there must be an ...