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Tolbert v. Foster

United States District Court, S.D. Illinois

January 25, 2018

CRAIG FOSTER and C/O SLAGLE, Defendants.



         Pro 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 part.


         On 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.).

         At the 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.

         Defense 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.

         Defense 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:

Mr. Tolbert:
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, IL.

(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.).


         Pursuant 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.

         It is 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 ‚Äúthere must be an ...

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