UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

WILLIAM COX, )

)

Plaintiff )

)

vs. ) CAUSE NO. 2:13-CV-81 RLM

)

ARCELLOR MITTAL, GERALD )

COOK, JOSEPH MEDELLIN, )

and MARY LYNN GARGAS-SOUTH, )

)

Defendants )

OPINION and ORDER

With this case more than twenty months old, plaintiff William Cox has

yet to appear for his deposition. The deposition was first scheduled — finally

scheduled, according to the exasperation evident in defense counsel’s letter

confirming agreement on the date — on May 22 of this year, nine days short

of the discovery deadline. Mr. Cox’s deposition was to kick off discovery

because the parties had agreed that the depositions of the individual

defendants wouldn’t be held until after Mr. Cox’s deposition. Days before

the scheduled May 22 deposition, Mr. Cox announced that after two years

of unemployment since leaving defendant Arcellor Mittal, he had gotten a

job between Ann Arbor and Detroit, Michigan, and had to leave the

northwest Indiana area immediately. The May 22 deposition was cancelled. 
Magistrate Judge Cherry extended the discovery deadline to August

29, but only for the depositions of Mr. Cox and the individual defendants.

Rescheduling Mr. Cox’s deposition proved more difficult than one ordinarily

would expect because his job schedule in Michigan is such that he would

only agree to sit for his deposition on Fridays (only twelve Fridays were

available between the June 11 extension of discovery and the new August

29 deadline for completing discovery). The deposition was reset for July 11.

At 1:00 a.m. that day, Mr. Cox notified his attorney that he had suffered a

flat tire on his drive from southeastern Michigan to northwest Indiana and

wouldn’t be able to make it. Mr. Cox later sent along paperwork confirming

the purchase of a new tire. The deposition was cancelled with minimal

notice to the court reporter. 

The attorneys rescheduled the deposition for August 22, one week

ahead of the adjusted discovery deadline. This time, the attorneys all

appeared for the deposition with the court reporter. None could account for

Mr. Cox’s absence. That evening, Mr. Cox called his attorney and told her

that he was severely ill with respiratory problems and had taken some

medication that left him unable to call. A few days later, he produced a

doctor’s note reporting that Mr. Cox had told a doctor the same thing.

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The discovery deadline passed quietly as Mr. Cox and his attorney

decided whether a voluntary dismissal was in order. They decided to

proceed and, on October 6, filed a motion to reopen discovery to allow the

parties’ depositions to be taken. The defendants objected to the general

reopening of discovery and moved to dismiss the case for the plaintiff’s

failure to cooperate in discovery. The court heard argument on the motion

on November 18. 

Courts can’t operate without setting and enforcing deadlines. Gross

v. Cicero, Illinois, 528 F.3d 498, 499-500 (7th Cir. 2008). Rule 16(b)

provides that a discovery deadline can’t be modified without a showing of

good cause, but a higher standard applies in this case because Mr. Cox

didn’t file this motion until after discovery closed: a party seeking to re-open

discovery must show excusable neglect for failiting to complete discovery

within the time allotted. Brosted v. Unum Life Ins. Co. of America, 421 F.3d

459, 464 (7th Cir. 2005). Mr. Cox hasn’t made such a showing. At best, he

has shown excusable neglect for failing to appear on July 11 and August 22.

But Magistrate Judge Cherry provided 87 days for the parties to take the

depositions of Mr. Cox and the other parties; that came after the expiration

of the 228 days afforded in the original scheduling order. Mr. Cox hasn’t

made the showing necessary for the court to re-open discovery. 

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Neither is dismissal proper. Mr. Cox has frustrated discovery, but he

hasn’t refused to participate; indeed, his motion to re-open discovery seems

to have been designed primarily to allow the defendants to take his

deposition. Although he appears to have impeded his deposition, Mr. Cox

hasn’t refused to attend or to answer questions. “Time limits set by judges,

unlike those in statutes, often can be extended . . . . When judges can

decide whether to be strict or lenient, it is important to match the sanction

to the offense.” Gross v. Cicero, 528 F.3d at 500. “The sanction of dismissal

must be one that a reasonable jurist, apprised of all the circumstances,

would have chosen as proportionate to the infraction.” Maynard v. Nygren,

372 F.3d 890, 892-893 (7th Cir. 2004). We haven’t reached that point.

Based on the foregoing, the court DENIES the plaintiff’s motion to

reopen discovery [docket # 39], DENIES the defendants’ motion to dismiss

[docket # 40], and, instead of dismissing the case, ORDERS as follows:

1. Mr. Cox shall make himself available for his deposition

at such time and date as the attorneys find convenient, but in

no event more than fourteen days from the date of this order.

Failure to comply will result in dismissal of the case under Federal

Rules of Civil Procedure 41(b) and 37(b)(2).

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2. Also within fourteen days of the date of this order, the

defendants shall file with the court a statement of expenses

incurred (including attorney fees for attendance) with respect to

the attempted depositions on May 22, July 11, and August 22,

2014. 

3. The plaintiff shall have fourteen days from the date of

that filing to show cause why the court should not order Mr. Cox

to reimburse the defendants for those expenses pursuant to

Federal Rule of Civil Procedure 37(d)(1)(A)(i).

SO ORDERED.

ENTERED: November 19, 2014 

 /s/ Robert L. Miller, Jr. 

Robert L. Miller, Jr., Judge

United States District Court 

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