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Adger v. R&L Management Co., Inc.

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

June 7, 2019

MARSHA ADGER, Plaintiff,

          Joan H. Lefkow District Judge.



         Plaintiff Marsha Adger, by her counsel, has moved to withdraw from a scheduled settlement conference and to "proceed with discovery" ("the Motion," D.E. 26) in this matter in which she alleges employment discrimination. The Court dismisses the Motion as moot, having determined that at this time, a settlement conference will not be fruitful and having vacated the conference on the Court's own motion. The Court files this Memorandum Opinion to offer some additional comments about the Motion, the need to abide by Court orders, and the need for counsel to be courteous to each other and to the Court when it comes to matters of scheduling.


         Although discovery never was stayed in this matter, on May 2, 2019, the Court scheduled a settlement conference at the Parties' request.[1] In connection with scheduling the settlement conference for June 14, the Court entered an order on May 2 providing in relevant part: "Parties are to exchange position letters prior to the settlement conference. Plaintiff shall provide Defendants with a demand letter by 5/24/19." (D.E. 25) (emphasis added). But Plaintiff never provided Defendants with her demand letter. In the meantime, Plaintiff and Defendants became involved in a discovery dispute about what discovery each could or should pursue with the settlement conference pending. On May 30, Plaintiff filed the Motion to pull out of the settlement conference, arguing that Defendants' pursuit of written discovery responses and certain third-party discovery was unfair in light of the agreement to mediate. The Motion made no mention of Plaintiffs not having complied with the Court's May 2 Order. At no time before May 30 did Plaintiff seek any relief from that Order, and the Motion she filed on May 30 does not explicitly seek relief from the Order's directive that she provide Defendants with a demand letter. A request for that specific form of relief from the Order arguably is implicit in the Motion's request to withdraw from the settlement conference.

         The Court will not take the time to walk through the particulars of the discovery dispute that apparently triggered the Motion. However, the exhibits submitted by Defendants, and not disputed by Plaintiff, show that after the May 2 Order setting the settlement conference for June 14, Plaintiffs lead counsel, Luke A. Casson, sent an email to defense counsel committing to provide responses to Defendants' written discovery requests by May 9. In addition, on May 3, one day after the Order, defense counsel emailed Mr. Casson, seeking a HIPPA release that would permit Defendants to subpoena a hospital for Plaintiffs medical records, so that Defendants could have them in advance of the June 14 settlement conference. The record does not indicate that Plaintiff, by Mr. Casson, ever responded to the request for the HIPPA release, although in the Motion, Plaintiff objected to Defendants' pursuit of the hospital records by third-party subpoena while Plaintiff had agreed to postpone the taking of three depositions. The Court is not weighing in on whether Plaintiff ought to be permitted to take those depositions or whether they were necessary before the settlement conference. But the record does establish that Defendants' interest - for purposes of the settlement conference - in Plaintiffs written discovery responses, and in the third-party medical record discovery, was known to Mr. Casson as early as May 3.

         Yet Mr. Casson did not complain about this discovery, or assert to Defendants that they ought not to obtain it before the settlement conference, until he signed and filed the Motion on May 30 calling for the settlement conference to be cancelled due to the unfair disadvantage purportedly imposed on him and his client by the state of discovery.

         For their part, Defendants responded to the Motion on June 3. They asserted that they had not treated Mr. Casson or his client unfairly. (D.E. 29.) They recited, with exhibits, the history of their communications with Mr. Casson since May 2, including his statement that written discovery responses would be provided and Defendants' multiple requests for the HIPPA waiver so they could subpoena the medical records. (Id.) But they opposed Plaintiff's request to withdraw from the settlement conference and asked the Court to compel her to appear at the settlement conference so it could proceed as scheduled on June 14. (Id.)

         At the hearing, Plaintiffs counsel presented and argued the Motion, but Mr. Casson did not appear. Instead, he sent a junior lawyer who argued the Motion gallantly and behaved with integrity, although she did not know the answer to the Court's question of why Plaintiff and/or her counsel failed to comply with the May 2 Order directing the transmittal of a settlement demand by May 24, or why no effort was made to seek timely relief from that aspect of the Order.


         First, if Plaintiff is unwilling to appear at a settlement conference, the Court is in no position to force her to do so. All parties to a dispute must want to pursue the settlement avenue in order for a mediation to be successful. And aside from Plaintiffs noncompliance with the Court's May 2 Order, if she will not or cannot articulate a written settlement proposal stating her damages, itemizing them, and setting forth an opening monetary position, the matter simply is not ready for mediation. Perhaps it will be ready at some point in the future. But because it is not ready now, or because, more specifically, Plaintiff is not quite ready to mediate, there is no point in conducting a settlement conference, and the Court is vacating the June 14 conference on its own motion. The Court therefore dismisses the Motion as moot.

         Second, the Court has some concerns about how the Motion came about and how it was litigated, and the Court wants to take this opportunity to draw the Parties' attention to a few simple points.

         As a preliminary matter, the Court does not view Plaintiffs or her counsel's disregard of the May 2 Order's directive (concerning the transmittal of a settlement demand by May 24) as contemptuous or as sufficiently disruptive to the tribunal to raise a professional responsibility problem under Illinois Rule of Professional Responsibility 3.5(d), particularly where the reassignment of this matter coincided with this dispute and with the rescheduling or postponement of other hearings and conferences. But Plaintiffs noncompliance with the May 2 Order warrants a strong reminder, to all, that orders entered by the Court are important and should not be disregarded or taken lightly. At the May 2 hearing before U.S. Magistrate Judge Rowland, defense counsel offered her insurer representative's available dates for June, and there were only four of them. (5/2/19 Tr. at 4.) The Parties chose June 14, and the Court placed that date on its calendar for the settlement conference. (Id.)

         Shortly after reassignment of this matter, the Court attempted to address the issue of previously scheduled settlement conferences in multiple matters, with a view toward avoiding postponing any of them, wherever possible, as a courtesy to the litigants and their counsel. The Court had decided not to postpone the June 14 conference in this matter, while considering the schedules of ...

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