Cause No. 2:01-CV-489-PPS.
September 8, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B)
This matter is before the Court on the Motion to Dismiss or, in the Alternative, to Extend Discovery to Permit Defendants to Conclude Their Written and Oral Discovery [DE 67], filed by the Defendants on October 15, 2003. On August 30, 2004, District Court Judge Philip Simon entered an Order [DE 78] referring the Defendant's Motion to Dismiss or, in the Alternative, to Extend Discovery to Permit Defendants to Conclude Their Written and Oral Discovery to the undersigned Magistrate Judge for a report and recommendation. Because the Plaintiff, Reginald Montgomery, has still failed to provide any Rule 26(a)(1) disclosures and has failed to appropriately and completely respond to the Defendants' discovery requests despite more than two years and in defiance of multiple orders of the Court, the Court recommends that the motion be granted and that this matter be dismissed.
BACKGROUNDOn August 9, 2001, Montgomery filed his Complaint with this Court alleging that his constitutional rights were deprived in violation of 42 U.S.C. § 1983 when the Defendants fired him because of his race and because he had previously filed a lawsuit against the Defendants. On September 18, 2001, the Defendants moved to dismiss Montgomery's Complaint because they were not state actors for purposes of § 1983. Despite the benefit of two extensions of time to respond to the Defendants' motion, Montgomery did not respond. On June 6, 2002, notwithstanding the fact Montgomery had not filed a response in the nearly nine months that elapsed after the Defendants filed their motion, the Court denied the Defendants' first motion to dismiss. The Court, while noting the lack of clarity in Montgomery's Complaint, held that Montgomery need not plead the correct legal theory so long as the alleged facts were sufficient to state a claim under some theory. The Court then set a pretrial schedule and ordered the parties to submit their initial disclosures pursuant to Federal Rule of Civil Procedure 26 on or before July 8, 2002 and complete discovery by December 31, 2002.
Montgomery did not serve any Rule 26(a)(1) disclosures. On September 27, 2002, the Defendants served their first written discovery requests on Montgomery pursuant to Federal Rules of Civil Procedure 33, 34, and 36. Montgomery's responses to the discovery requests would have been due on October 30, 2002. Montgomery failed to timely provide any responses. On December 12, 2002, the Defendants moved to compel Montgomery to provide answers to their written discovery and to provide their initial disclosures. The Court, on January 9, 2003, ordered Montgomery to provide his Rule 26(a)(1) disclosures as well as his responses to Defendants' written discovery requests by January 20, 2003.
On January 21, 2003, a day after the Court-ordered deadline, Montgomery provided nominal responses to Defendants' discovery requests. Montgomery's responses did not include any Rule 26 disclosures. On February 19, 2003, the Defendants transmitted correspondence pursuant to Rule 37 and Local Rule 37.1 requesting that Montgomery provide complete and appropriate responses to Defendants' discovery requests. Montgomery did not respond to the Defendants' letter.
On February 26, 2003, the Defendants filed a motion to extend the discovery period. The Court granted the motion and discovery was extended to September 3, 2003. On March 14, June 4, June 20, and June 27, 2003, the Defendants transmitted correspondence to Montgomery requesting that he provide complete and appropriate responses to the Defendants' discovery requests. Montgomery did not respond to these letters in any fashion.
During a July 24, 2003 meeting, counsel for Montgomery indicated that the Defendants would receive complete discovery responses by July 28, 2003. Once again, however, Montgomery did not provide any responses. On July 31, 2003, the Defendants transmitted correspondence again requesting Montgomery to provide complete responses to Defendant's discovery requests. And again, Montgomery did not respond in any fashion.
On August 18, 2003, the Defendants filed another motion to compel Montgomery to respond to the discovery requests and to extend discovery for the purposes of allowing the Defendants to conclude their written and oral discovery. Montgomery did not file a response to the Defendants' motion, and on August 29, 2003, the District Court granted the Defendants' motion. The Court ordered Montgomery to promptly respond to the Defendant's written discovery requests by curing all deficiencies in his answers to the Defendant's discovery requests, extended the discovery period until October 31, 2003, to permit the Defendants to complete their discovery, and ordered Montgomery to show cause why costs and fees incurred by Defendants in bringing their motion to compel should not be granted pursuant to Rule 37.
For nine weeks, Montgomery did nothing. On October 15, 2003, the Defendants brought the current motion to dismiss. On or about November 4, 2003, after the Defendants filed their current motion, Montgomery served supplemented answers to the Defendant's discovery requests. After receiving Montgomery's supplemented answer, on December 2, 2003, the Defendants transmitted another letter to Montgomery notifying him that his answers were still inadequate and requesting complete and appropriate answers. Montgomery did nothing in response to the Defendants' letter. Then, on December 22, 2003, the Defendants filed a supplement to their original motion to dismiss to inform the Court of Montgomery's supplemented answers and to apprise the Court of the alleged deficiencies that still remain despite Montgomery's supplemented answers. The following are examples of seven responses and supplemental responses to interrogatories provided by Montgomery.
Interrogatory Number 1 asks Montgomery to identify all persons who witnessed or claimed to have witnessed the allegedly unlawful acts upon which Montgomery's complaint is based and for each such person, state the person's address, employer, and the allegedly unlawful acts witnessed or known. Montgomery's original answer included the names of "Charlie Walker, Mike Fisher, Tandy Walker, Richard Rogers and Toby Gross" but did not include any of these persons' addresses, telephone numbers, employers, or anything about the allegedly unlawful acts that these people witnessed. In his supplemented answer, Montgomery included the names of the five individuals previously identified and offered purported job titles and "care of" business addresses for each of them. Montgomery did not provide any of the individuals' telephone numbers nor any information about any unlawful acts purportedly witnessed or known by these individuals or the nature of Montgomery's relationship with any such person or whether there are any documents that related to any of these persons' purported knowledge of unlawful acts.
Interrogatory Number 5 asks Montgomery to state, among other things, whether he claims that any person employed by or acting on behalf of Defendants made any statement or remark or engaged in any act or practice which Montgomery believes is evidence of discrimination on the basis of race or evidence of retaliation and for each such incident state the name of the person responsible for the offending remark or act, the names of all persons present when the offending remark or act took place and what was said or done by the person who made the offending remark or committed the offending act. Montgomery initially responded: "no statement made, however management personnell [sic] cause the dismissal after engaging in harassing activities after my return to work from a prior settlement." Montgomery's entire supplemental response provides: "Richard Rogers, Supervisor, do not remember the date, do not remember if anyone present. Mike Fischer, I reported off, and he states that I was absent without notifying the company which is not true." The supplemented answer to Interrogatory Number 5 does not identify what was said or done by Rogers or when and to whom Montgomery complained about it. Similarly, with respect to Fischer, Montgomery does not identify any of the persons who were present when the alleged statement was made, when it was made or when and to whom Montgomery complained about the statement.
Interrogatory Number 7 asks Montgomery to identify others who had "reported off" in a manner similar to Montgomery and who were not terminated as Montgomery was and describe the manner in which these others "reported off" and how they were similar to Montgomery. Montgomery's entire initial response stated: "None known except Toby Gross." Now, in his supplemented response, Montgomery states: "Do not have access to the company's records of their employers, I believe they are confidential." Montgomery's supplemented answer does not provide any details of how Toby Gross "reported off," including when Toby Gross reported off and how the manner in which Toby Gross "reported off" was similar to Montgomery.
Interrogatory Number 8 asks Montgomery to identify and describe in detail each and every one of the discriminatory practices and decisions that "defendants have and continue to disregard and tacitly allow" as referred to in Paragraph 20 of the Complaint. Montgomery's initial response provided none of the requested information. Montgomery's supplemented response states that "Constantly harassing me on the job, making remarks, do not remember everything that I was called, the other individuals were not called out of their names or abused." Montgomery's supplemented answer does not provide the name of anyone who harassed him or made remarks to him, the harassment or remarks to which he refers, or the name of anyone who was not "called . . . names or abused."
Interrogatory Number 9 asks Montgomery to identify and describe in detail each and every respect in which "plaintiff was treated substantially different that [sic] similar [sic] situated employees of the majority" as quoted from Paragraph 22 of the Complaint. Montgomery's initial response stated: "Plaintiff does not believe, other than in the case of Toby Gross that any other has been terminated under the same set of circumstances." In his supplemented response, Montgomery states: "I was written up on a constant basis, before then I had not been given any days off or suspended until after the settlement regarding my accident. Making negative comments, stupid, act like a little "bitch," get your little coward ass back on where the job is, etc." Montgomery's supplemented answer does not identify the people who wrote him up or made the negative comments nor does it identify or describe how similarly situated employees of the majority were treated differently. Further, the use of "etc." suggests that Montgomery's answer is incomplete.
Interrogatory Number 10 asks Montgomery to identify each employer Montgomery has had since August 1, 1999, and for each employer state the dates of employment, his hourly wage or salary, the total earnings and where applicable, his reason for leaving. Montgomery's initial response did not provide any of the requested information. Montgomery's supplemented answer identifies three employers. However, for two of the employers, Montgomery does not identify his position and the dates of his employment, and for all three of the employers, Montgomery does not identify the amount he earned or the reason his employment ended.
Interrogatory Number 13 asks Montgomery to identify whether he has been a party to any claim, suit or action brought in any court in the previous ten years and for any such action identify the type and substance of the action, where the action was filed and the outcome of the action. Montgomery's initial response stated: "Reginald Montgomery v. Defendants in approximately 1993." Montgomery's supplemented response states: "Reginald Montgomery v. Defendants, Defendants Cola Workman's Comp, Do not remember the name of the court. Illinois, see attached card for Paul Peters." Montgomery's supplemented answer does not identify the name of the court where the action was brought, the style and number of the action or the outcome of the action.
Montgomery did not file a response to the Defendants' December 22, 2003 supplement. At a telephonic conference on June 17, 2004, Montgomery was granted an extension of time through June 24, 2004, to file a Response, and the Defendants were given until July 2, 2004, to file a reply. Montgomery filed a response to the Defendant's second motion to dismiss on June 24, 2004, nearly eight months after it was due. By way of this response, Montgomery suggests that his answers to Defendant's discovery requests are the clearest form of a response that he can provide without participating in a discovery deposition and that "Plaintiff's attorney will not submit answers which may require information that is not true."
Defendants move the Court to dismiss Montgomery's complaint pursuant to Federal Rules of Civil Procedure 37(b) and 41(b). At this juncture, the Court agrees that dismissal is appropriate.
A. Dismissal Under Rule 37
It is well settled that a district court has the discretion to impose sanctions, including dismissal, for failure to comply with discovery orders. Dotson v. Bravo, 321 F.3d 663, 666-67 (7th Cir. 2003). Dismissal under Rule 37(b)(2)(C) is appropriate when a plaintiff fails to comply with a discovery order and that failure results from willfulness, bad faith, or fault. In re Golant, 239 F.3d 931, 936 (7th Cir. 2001); Ladien v. Astrachan, 128 F.3d 1051, 1056 n. 5 (7th Cir. 1997). "Absent [these] circumstances, the careful exercise of judicial discretion requires that a district court consider less severe sanctions and explain, where not obvious, their inadequacy for promoting the interests of justice." Schilling v. Walworth County Park Planning Comm'n, 805 F.2d 272, 275 (7th Cir. 1986); see also Maynard v. Nygren, 332 F.3d 462, 467-8 (7th Cir. 2003). However, the Seventh Circuit also instructs that the appropriateness of lesser sanctions need not be explored if the circumstances justify imposition of the ultimate penalty, dismissal with prejudice. Halas v. Consumer Servs., Inc., 16 F.3d 161, 164 (7th Cir. 1994); see also Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996).
In Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1179-80 (7th Cir. 1987), a case remarkably similar to the case at bar, the Seventh Circuit affirmed a dismissal pursuant to Rule 37 (as well as Rule 41) for the failure to prosecute the action or obey the court's discovery orders to properly and completely answer twenty interrogatories. In Roland the plaintiffs: (1) failed for many months to provide any answers to the defendant's interrogatories; (2) provided responses to the requests only after the defendant filed a motion and the court ordered plaintiffs to do so; (3) belatedly provided responses that were incomplete and inadequate; and (4) failed to provide proper and complete discovery responses even after the defendant filed another motion and the court again ordered that the plaintiffs provide complete and appropriate answers. Id.
The Court finds that Montgomery's continued failure to fully comply with Defendants' discovery requests and this Court's orders is willful and in bad faith. In this case, Montgomery first failed for many months to provide any responses whatsoever to Defendant's written discovery requests. While Montgomery eventually did provide responses — when ordered to do so by the Court — these responses were nominal and incomplete. Thus, the Court, for a second time, ordered Montgomery to fully and properly respond to Defendants' written discovery requests. Montgomery was ordered to supplement his responses curing all deficiencies promptly. Montgomery did not, however, serve any supplemented responses until November 4, 2003, some nine weeks after the Court's order, a full fourteen months after Defendant originally served the interrogatories, and three weeks after the instant motion to dismiss.
Moreover, even these belated supplemental responses remain incomplete in defiance of the Court's August 29, 2003 Order. As discussed more fully above, Montgomery's supplemented responses continue to offer little of the information that Defendants seek by way of their interrogatories. Defendants' interrogatories in this case are by no means onerous, seeking only the general information about Montgomery's claims that they are entitled to in order to defend against his suit. For instance, it appears that one of Montgomery's claims is that his termination was in retaliation for a settlement that was reached in a worker's compensation action many years ago. Thus, Defendants seek information about this action, including where the action was filed, when the action was filed, and the disposition of the action. Yet, in response to Defendant's interrogatory seeking information about this previous worker's compensation action, Montgomery fails to answer where the action was filed, when it was filed, and what the outcome of the lawsuit was.
Additionally, in the three years since this litigation was filed and despite explicit orders of the Court on June 6, 2002, January 9, 2003 and August 29, 2003, Montgomery has still not provided any Rule 26(a)(1) disclosures. Notably, in Montgomery's response to the Motion to Dismiss, Montgomery provided no adequate explanation for the failure to submit these Rule 26(a)(1) disclosures, suggesting only that the Court deny the Motion and provide the Defendants with an opportunity to conduct oral discovery in order to learn the information they seek.
Enough is enough. Montgomery's failure to provide complete and appropriate answers to Defendant's discovery requests or satisfy his Rule 26 obligations must be considered deliberate, willful, and in bad faith. On two separate occasions, January 9, 2003, and August 29, 2003, Montgomery was ordered to answer the interrogatories. Neither order was obeyed. When the answers were ultimately filed in an untimely fashion, first on January 21, 2003, and then on November 4, 2003, they were incomplete. Further, it is clear to the Court that less severe sanctions chosen previously by the Court — Montgomery has still not shown cause why fees and costs relating to Defendants' last motion to compel should not be awarded — have proven ineffective in persuading Montgomery to comply fully with Defendant's discovery requests. Nor does the Court find that Montgomery's explanation in his response to the motion to dismiss provides any adequate explanation for the inadequacy of his responses in November 2003. Accordingly, the Court finds dismissal of Montgomery's Complaint is appropriate pursuant to Rule 37(b) and recommends that the District Court dismiss Montgomery's Complaint.
B. Dismissal under Rule 41
Under Rule 41(b), a court may dismiss a claim "[f]or failure of the plaintiff to prosecute or to comply . . . with any order of court. . . ." Fed.R.Civ.P. 41(b). Dismissal for failure to prosecute is "an extremely harsh sanction" that should be used "only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing." Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000); Roland, 811 F.2d at 1177. In most cases, the district court should warn the plaintiff that such a sanction may be imposed. See Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998); see also Ball v. City of Chicago, 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating that "[t]here should be an explicit warning in every case"). In considering such a dismissal, a district court should consider numerous factors, including the frequency and magnitude of the plaintiff's conduct, the prejudice to the defendant, the disruption to the orderly administration of the court's calendar, and the merits of the underlying litigation. See Williams, 155 F.3d at 857; Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000); Ball, 2 F.3d at 759-60.
A dismissal under Rule 37(b)(2)(C) should be distinguished from a dismissal under Rule 41(b) in that, unlike Rule 41(b), Rule 37(b)(2)(C) requires both a failure to comply with a discovery order and a showing of willfulness, bad faith, or fault. See Ladien v. Astrachan, 128 F.3d 1051, 1056 n. 5 (7th Cir. 1997) (citing Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283 (7th Cir. 1988); Roland, 811 F.2d at 1179). But see Maynard v. Nygren, 332 F.3d 462, 468 n. 2 (7th Cir. 2003) (recognizing that the standards under Rule 37 and Rule 41(b) overlap but relying exclusively on Rule 37 as the actions leading to dismissal were discovery violations). As in Ladien, the distinction in this case is irrelevant and, therefore, requires no further discussion.
Given the history of dilatory conduct by Montgomery, this case presents one of those "extreme situations." Kruger, 214 F.3d at 787 (citing Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994)). In three years since the inception of this litigation, and after repeated informal and formal attempts, Montgomery has yet to fulfill his obligation to respond fully to Defendants' discovery requests or even offer his initial disclosures. The Defendants, on the other hand, have done their part to move this litigation along, as evidenced by the numerous letters to Montgomery's counsel, multiple motions to compel, and now Defendants' second motion to dismiss.
The Court also finds that proper warning has been given to Montgomery. In Ball, the Seventh Circuit indicated that district courts should provide "due warning" to plaintiffs before dismissing a case for want of prosecution. See Ball, 2 F.3d at 755. In elucidating the terms "due warning," the Seventh Circuit stated: "`Due warning' need not be repeated warnings and need not be formalized in a rule to show cause. . . . But there should be an explicit warning in every case." Id. (internal citations omitted). The word "dismissal" need not be recited by the district court's "due warning." See Williams, 155 F.3d at 858. Further, the district court need not directly inform the litigant. See Ball, 2 F.3d at 756.
In some instances, courts are hesitant to impose dismissal when the impermissible conduct is that solely of the attorney. See Ladien, 128 F.3d at 1057 n. 6. However, the Seventh Circuit has recognized that it has not imposed a requirement that a court inform a Plaintiff directly of counsel's behavior in order to allow the Plaintiff time to seek new counsel. Williams v. Chicago Bd. of Educ., 155 F.3d 853, 858 (7th Cir. 1998). In Williams, the Court also recognized that the varied circumstances in these cases make establishing a hard and fast rule impractical. Id. In this case, it is difficult to determine the extent of the involvement of Montgomery himself in the failure to prosecute this case. The justification for the discovery responses made in the response to the motion to dismiss leads the Court to query as to whether Montgomery himself is rendering more difficult his counsel's ability to move this case forward:
Plaintiff has attempted to respond to defendant[sic] questions, however, plaintiffs[sic] take the position that the answer to questions submitted are the clearest form of response that he can make without his participation in a discovery deposition.
Plaintiff's attorney has indicated to the defense attorney that to attempt to complete discovery by amending plaintiff's complaint cannot properly be done without doing violence to plaintiff's ability to honestly file this Complaint. Plaintiff's attorney will not submit answers which may require information which is not true.
Pl. Response Brief.
In this case, Montgomery has received "due warning" in many forms. In the Court's two orders granting Defendants' motions to compel, Montgomery was first warned that an award of costs and fees would be held under advisement pending Montgomery's compliance with the Court's order, and then, on August 29, 2003, Montgomery was ordered to show cause why costs and fees should not be awarded pursuant to Rule 37. As a result, Montgomery should have been well aware of the Court's increasing frustration with Montgomery's failure to comply with the Court's orders and to move forward with the case as well as the full spectrum of sanctions available to the Court under Rule 37. Further, the Defendants' motions to dismiss for want of prosecution, specifically requested dismissal pursuant to Federal Rule of Civil Procedure 41(b). And in several status conferences before the Court, Montgomery was advised that no further scheduling orders would be entered until a ruling was entered on Defendants' motion. Yet, despite Defendants' motion and the specter of dismissal, Montgomery still refuses to provide complete answers to the Defendants' discovery requests.
Finally, the Court finds that less severe sanctions are not warranted in light of Montgomery's disregard for the discovery deadlines set by the Court, Defendants' repeated informal and formal attempts to obtain discovery, as well as Montgomery's complete failure to show cause why attorney's fees should not be awarded to the Defendants. Indeed, the Court finds that the less severe sanctions chosen by the Court previously have proven next to useless in prompting Montgomery to participate in his own lawsuit.
Montgomery chose to file this lawsuit, a lawsuit that would not ordinarily be resolved by itself. Montgomery has an obligation to prosecute this action and participate in discovery. In the three years since this action was first filed, Montgomery has done next to nothing to move this litigation forward. In contrast, Defendants have done everything in their power to have this case decided on the merits. Instead, it is Montgomery's own inaction for three years that now prevents such a determination. In sum, the Court finds Montgomery's conduct in this case establishes "a clear record of delay or contumacious conduct" sufficient to justify dismissal pursuant to Rule 41(b) and recommends that the District Court dismiss Montgomery's Complaint.
For the foregoing reasons, the Court RECOMMENDS that the District Court GRANT the Defendants' Motion to Dismiss [DE 67] and dismiss this matter with prejudice.
This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B). Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have ten (10) days after being served with a copy of this Recommendation to file written objections thereto with the Clerk of Court. The failure to file a timely objection will result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n. 2 (7th Cir. 1988).