United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
Executive Committee reassigned this case to me on November
18, 2019, on a referral from Judge Pacold, who had just been
sworn in as a district judge in the Northern District of
Illinois. The referral included two motions, one an
eight-month-old discovery motion [Dkt. #82] and the other a
motion for discovery sanctions under Fed.R.Civ.P. 36(a)(3).
[Dkt. #122]. Because the posture of these proceedings has
become clouded, to say the least, the parties are all ordered
to appear for status in courtroom 1003 on 12/9/19 at 8:30
a.m. on the Motion to Compel the Production of Documents from
MSG and Target. [Dkt. #82].
Complaint was served on MGS in Hong Kong on April 25, 2018
[Dkt. #17], and two attorneys filed appearances for the
corporate defendant on May 15, 2019. [Dkt. ##18, 19]. They
filed a motion for an extension of time in which to answer
the Complaint that same day. [Dkt. #20]. Judge Pallmeyer
granted that motion, and MGS's Answer was due on June 4,
2018. [Dkt. # 22]. On June 1st, MGS filed another
motion for an extension of time in which to answer, which
Judge Pallmeyer granted, setting the new deadline as June
13th. [Dkt. ##23, 25]. MGS filed its Answer on
that date. [Dkt. # 30]. The parties commenced MIDP discovery
on July 13th and filed an agreed Confidentiality
Order on the 16th. [Dkt. ## 39-42].
parties entered settlement discussions, and Judge Pallmeyer
allowed an MIDP extension to that end on August 27, 2018.
[Dkt. # 49]. But, things weren't going too well: Target
responded to Ty's settlement demand by deferring to
MGS's position, but MGS hadn't advanced a position by
the time of the parties' Rule 16 conference. [Dkt. # 51].
MGS finally did respond on behalf of both defendants on
August 20, 2018. MGS continued to speak for both itself and
Target as discussions moved into October of 2018. [Dkt. #
51]. Then, at the end of the month, Target was heard from, as
it filed a motion to enforce a settlement it claimed it had
entered into with Ty. [Dkt. # 55]. Ty responded, saying it
had not agreed to terms Target had inserted in its draft of
the proposed settlement agreement. [Dkt. # 58]. Judge
Pallmeyer denied Target's motion to enforce the
parties' settlement without discussion on December 7,
2018. [Dkt. #69].
usual discovery problems ensued, and further extensions were
granted. On March 29, 2019, Ty filed a motion to compel
production of documents from the defendants. [Dkt. # 82].
Judge Pallmeyer entered and continued the motion and did not
set a briefing schedule. [Dkt. #84]. On May 27, 2019, Target
sought a stay of this case pending a response from the
Register of Copyrights on an issue in the case. [Dkt. #86].
Judge Pallmeyer entered and continued this motion as well,
but set a briefing schedule through July 1, 2019. [Dkt. #93].
Discovery was set to close on October 30, 2019. [Dkt. # 102].
Judge Pacold, to whom this case was now reassigned on August
23, 2019, extended that deadline to December 16, 2019. [Dkt.
Pallmeyer allowed MGS's attorneys to withdraw as counsel
on July 23, 2019 [Dkt. # 109], leaving MGS, a corporation,
unrepresented. Thereafter, it did not hire new counsel even
though a corporation cannot appear pro se in the
federal courts. See, e.g., Trade Well Int'l v. United
Cent. Bank, 825 F.3d 854, 860 (7th Cir. 2016);
Nocula v. UGS Corp., 520 F.3d 719, 725 (7th Cir.
2008). MGS remains unrepresented to this day. About the time
MGS's attorneys were withdrawing and MGS was proceeding
pro se, Ty served requests to admit on MGS at their
last known address in Hong Kong, the same address their
former attorneys used to serve them with their motions to
withdraw. [Dkt. #107-1, 122].
brings us up to date, with things more or less in limbo.
There is a pending motion to stay the case. One of the two
corporate defendants continues to proceed pro se, in
violation of the rules. As for the eight-month-old motion to
compel, Target says it's moot, ostensibly because it has
produced all the responsive materials it has. Ty says
it's not moot. [Dkt. # 128]. They should be prepared to
discuss that at the hearing.
the Rule 36(a)(3) sanctions motion, MGS, not surprisingly,
has never responded to the requests to admit. That, means, as
Ty argues in its sanctions motion, that those requests are,
under the Federal Rules, deemed admitted. Fed.R.Civ.P.
36(a)(3); Gabbanelli Accordions & Imports, L.L.C. v.
Gabbanelli, 575 F.3d 693, 696 (7th Cir. 2009);
Nautilus Ins. Co. v. Reuter, 537 F.3d 733, 741 (7th
Cir. 2008). But, MGS has essentially been in default since
July, although no default has been entered. Cf. Firestone
Fin. LLC v. Meyer, 881 F.3d 545, 548 (7th Cir.
2018)(district court defaulted unrepresented corporations);
In re Snyder, 939 F.3d 92, 98 (2d Cir.
2019)(district court warned unrepresented corporation that it
would be defaulted); Williams v. Advanced Urgent Care of
City Line LLC, 744 Fed.Appx. 50, 53 (3d Cir.
2018)(repeated default warning to unrepresented corporation).
Judge Pacold did order MGS to obtain counsel on October
25th [Dkt. #124], but it did not, and nothing has
happened since then.
federal law, I am without authority to enter a default or
default judgment in this case. By the same token, Target is
without authority to take up representation of MGS. Target
has filed a brief in response to Ty's motion to have the
unanswered requests deemed admitted. That's because a
number of the requests to admit - if deemed admitted - would
essentially establish liability for infringement on MGS's
part, and potentially inveigle Target in that liability. It
must be said that the timing of Ty's requests to admit -
immediately in the wake of MGS's attorneys withdrawing -
was a little sketchy. “Litigation is adversarial, not a
game of gotcha.” Uncommon, LLC v. Spigen,
Inc., 926 F.3d 409, 419 (7th Cir. 2019). But, again, as
the district court has not entered a default, it was a course
of action available to Ty. A corporate defendant who cannot
proceed pro se cannot cause the case against it to
be halted interminably or for the course of discovery to be
halted while it takes no action to secure substitute counsel.
It bears repeating that that task could not be taken up by
its corporate co-defendant. MGS did not properly object
through counsel to the requests as being out of bounds, and
thus it is too late. See Fed.R.Civ.P.
36(a)(3)(matter deemed admitted after 30 days if party
neither responds nor objects). Moreover, Target never
objected or took any position as to the requests to its
co-defendant that impermissibly proceeded to participate
unrepresented for months on end.
sanction - admission - is automatic under the rules and the
only course for avoiding it is a motion to withdraw the
admissions before the trial court. Fed.R.Civ.P. 36(b); In
re Greene, 310 Fed.Appx. 17, 20 (7th Cir. 2009);
Banos v. City of Chicago, 398 F.3d 889, 892 (7th
Cir. 2005) see also Creative Trade Grp., Inc. v.
Int'l Trade All., Inc., No. 08 C 2561, 2009 WL
3713345, at *9 (N.D. Ill. Nov. 4, 2009) ((Pallmeyer,
J.)(“Rule 36 is self-executing, meaning that an
admission is automatically established by operation of the
rule, with no court intervention required.”);
Matthews v. Homecoming Financial Network,
2006 WL 2088194 at *2 (N.D.Ill.2006).
the Motion to Deem Facts Admitted as Against MGS Group, Ltd.
for Failure to Comply with Rule 36 [Dkt. # 122] is moot since
admission under the Federal Rules of Civil Procedure and the
circumstances presented here is automatic. Whether and how
some or all of the automatic admissions of MGS Group can be
used against Target is a matter I need not decide.
 As will be seen, the Motion to Deem
Requests Admitted [Dkt. #122] is unnecessary under the
Federal Rules ...