UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

WILLIAM COX, )

)

Plaintiff )

)

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

)

ARCELLOR MITTAL, et al., )

 )

Defendants )

OPINION and ORDER

A hearing was held in this action on November 18, 2014 on the plaintiff’s

motion to reopen discovery and the defendants’ motion to dismiss the complaint

based on Mr. Cox’s many delays in participating in the discovery process and his

failure to appear for his deposition on three separate occasions. On November 19,

the court entered an order denying Mr. Cox’s request to reopen discovery,

concluding that Mr. Cox hadn’t shown excusable neglect for failing to complete

discovery within the time allotted, and denying the defendants’ motion to dismiss.

Instead, the court ordered that Mr. Cox 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 [the] order.” Op. and Ord. (Nov. 19, 2014), at

4. 

The defendants are again before the court asking that this case be

dismissed pursuant to Federal Rules of Civil Procedure 41(b), 37(b)(2), and 37(d)
based on Mr. Cox’s continued failure to comply with court orders, specifically

noting Mr. Cox’s non-compliance with the court’s November 19 order that he

appear for his deposition. The defendants report that their counsel tried to

schedule Mr. Cox’s deposition by emailing and telephoning plaintiff’s counsel on

November 21 and 24, but got no response to either inquiry. The defendants

conclude that “[a]fter almost two years of litigation, more than 315 days of

discovery, and three canceled depositions, plaintiff has still not appeared for his

deposition. Therefore, plaintiff’s complaint should be dismissed.” Mot., at 1.

Mr. Cox says in response that his counsel didn’t receive an e-mail or a

telephone call from defense counsel and didn’t receive the court’s November 19

Opinion and Order until December 3, 2014. According to Mr. Cox, his counsel’s

office “was partially closed November 19-20 and fully closed November 21, 2014

due to a large fundraising event. Apparently on November 21, 2014, defense

counsel had attempted to contact [plaintiff’s] counsel by email, but, again, the

office was closed and email was not accessible.” Resp., at 1 n.1. Mr. Cox says

defense counsel should have issued a notice of deposition had the defendants

“truly wished to take [his] deposition.” Resp., at 3. He suggests, too, that defense

counsel should have faxed or mailed correspondence, called his counsel’s cell

phone, and/or had defense counsels’ staff contact his counsel’s staff to schedule

the deposition rather than attempting to contact his counsel directly. 

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Mr. Cox says he tried to comply with the court’s order but defense counsel

rejected his December 3 offer to make himself available for his deposition on

December 4 (which would have been within the fourteen day period), December

5, or on another date. According to Mr. Cox, defense counsel “waited until the

11th hour to contact [his] counsel directly and then refused to conduct the

deposition within the 14 day period – essentially hoping that [he] would ‘fail’.”

Resp., at 3. Mr. Cox maintains his case shouldn’t be dismissed because he tried

to schedule his deposition as the court ordered; he asks that he be permitted to

appear at a deposition “as coordinated by [a] deposition notice, to be scheduled

by defense counsel within an allotted time frame.” Resp., at 4. 

Sanctions Under Rule 37

An award of sanctions under Rule 37 for failure to cooperate in discovery

or appear at a deposition requires a finding that the offending party’s actions

“displayed willfulness, bad faith, or fault.” Collins v. Illinois, 554 F.3d 693, 696

(7th Cir. 2009). “‘Bad faith’ . . . is characterized by conduct which is either

intentional or in reckless disregard of a party’s obligations to comply with a court

order. ‘Fault,’ by contrast, doesn’t speak to the noncomplying party’s disposition

at all, but rather only describes the reasonableness of the conduct – or lack

thereof – which eventually culminated in the violation.” Marrocco v. General

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Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). Rule 37 sanctions may include

dismissal of the action. See Fed. R. Civ. P. 37(b)(2)(A); Fed. R. Civ. P. 37(d)(3).

The record in this case shows the following:

– the court issued orders to show cause on July 19 and July 23, 2013

for Mr. Cox’s failure to serve the individual defendants pursuant to Federal

Rule of Civil Procedure 4(m). Mr. Cox didn’t respond to the show cause

orders, so the court dismissed his claims against the individual defendants

on August 21, 2013. The next day, Mr. Cox filed a motion to vacate the

dismissal and reinstate his claims against those defendants, explaining that

his counsel “inadvertently” failed to file the proof of service forms before the

court’s dismissal of those defendants. 

– at the October 24, 2013 preliminary pretrial conference, the parties

agreed that all discovery would be completed by May 30, 2014. A week after

the close of discovery, Mr. Cox requested that the discovery deadline be

extended to August 29, which the court granted for the sole purpose of

taking Mr. Cox’s deposition; included the court’s order was a warning that

further requests to extend the discovery deadline would be “viewed with

disfavor.” 

– six weeks after the August 29 discovery deadline passed, Mr. Cox

filed a motion asking that discovery be reopened and the deadline be

extended again to permit the parties to take Mr. Cox’s deposition. Hearing

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on that motion was held on November 18, and the court’s order denying the

motion and directing that Mr. Cox’s deposition take place within fourteen

days was issued on November 19.

The defendants report that, to date, Mr. Cox has conducted no discovery,

his responses to their written discovery were submitted five months late, and his

initial disclosures were served on their counsel a week after the close of discovery.

Mr. Cox hasn’t challenged the defendants’ statements in this regard.

Missing one deadline “fails to rise to the level of long-standing or

contumacious conduct warranting dismissal,” Kruger v. Apfel, 214 F.3d 784, 787

(7th Cir. 2000), but the record of this action shows that in the almost two years

the case has been pending, Mr. Cox hasn’t undertaken any discovery, cooperated

with the defense in their attempts to conduct discovery, or taken any other action

to prosecute his case. And while the court doesn’t believe any bad faith has been

shown on the part of Mr. Cox or his counsel, Mr. Cox’s continued delays and lack

of interest in pursuing his claims against the defendants supports a finding of

willfulness or fault on his part that warrants dismissal under Federal Rule of Civil

Procedure 37(b)(2)(A).

Sanctions Under Rule 41

Dismissal for want of prosecution under Rule 41(b) requires “a clear record

of delay or contumacious conduct, or where other less drastic sanctions have

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proven unavailing. The appropriateness of this measure depends on all the

circumstances of the case.” Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561

(7th Cir. 2011) (internal quotation and citation omitted). Factors for the court to

consider include “the frequency of the plaintiff’s failure to comply with deadlines;

whether the responsibility for mistakes is attributable to the plaintiff [himself] or

to the plaintiff’s lawyer; the effect of the mistakes on the judge’s calendar; the

prejudice that the delay caused to the defendant; the merit of the suit; and the

consequences of dismissal for the social objectives that the litigation represents.”

Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011). 

Frequency of Non-Compliance and Responsibility for Actions

The discussion of Mr. Cox’s non-compliance with discovery deadlines didn’t

include the additional consideration of his failure to appear for his deposition on

three different occasions — conduct that is attributable to Mr. Cox personally. Nor

did that discussion include consideration of Mr. Cox’s failure to comply with the

court’s most recent order that he “make himself available for his deposition at

such time and place as the attorneys find convenient, but in no event more than

fourteen days from [November 19, 2014].” Op. and Ord. (Nov. 19), at 4. Mr. Cox’s

counsel has explained that her office was partially closed on the day the court’s

order was issued and fully closed during the time defense counsel was attempting

to contact her to schedule the deposition, so she received none of those

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communications. Counsel hasn’t stated that she made any attempt to keep

current on the case via the court’s electronic docketing system or contact defense

counsel to ascertain the status of the pending motions. This conduct might be

more attributable to plaintiff’s counsel than to Mr. Cox personally, but “the client

must be held accountable for the acts and omissions of his attorney.” Medrad, Inc.

v. Sprite Development, Inc., No. 08 CV 5088, 2012 WL 1520706, at *3 (N.D. Ill.

Apr. 30, 2012). 

Mr. Cox says his case shouldn’t be dismissed because he tried to comply

with the court’s order. The court can’t agree. The defendants report that on

“December 3, 2014, at approximately 5 p.m. Central/6 p.m. Eastern, plaintiff’s

counsel offered to hold plaintiff’s deposition the following morning (the final day

for plaintiff to appear under the court’s order), or on the next day (which was

beyond the time in which plaintiff was ordered to appear). Defense counsel

responded immediately thereafter that it was not feasible, reasonable or mutually

agreeable to conduct plaintiff’s deposition on such extremely short notice.” Mot.,

at 5. Mr. Cox faults the defendants for not agreeing to proceed with his deposition

on December 4 or soon thereafter – he claims defense counsel should have been

able to take the deposition on short notice because counsel had prepared for the

deposition on three previous occasions; he also says that if named counsel wasn’t

available on December 4 or 5, other attorneys employed by the law firm in which

defense counsel practices might have attended in his stead. 

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By the time Mr. Cox made his “tomorrow morning” offer, he had been a no

show in response to three separate notices of deposition, and had moseyed

through two prior deadlines, plus thirteen of fourteen days of the latest deadline,

for the taking of his deposition. Whatever fault might be allocated under these

circumstances doesn’t go to the defense.

Merits of Plaintiff’s Case, Prejudice to Defendants, Effects on Court Calendar

The court can’t assess the merits of Mr. Cox’s claims because little or no

discovery has taken place. More importantly, the defendants report that they have

been prejudiced – they’ve been unable to evaluate the merits of Mr. Cox’s claims

and prepare their defenses because of Mr. Cox’s continued dilatory conduct. The

court’s June 11, 2014 order warned Mr. Cox that any further requests to extend

the discovery deadline would be “viewed with disfavor,” and the court’s November

19, 2014 order told him that “[f]ailure to comply will result in dismissal of this

case under Federal Rules of Civil Procedure 41(b) and 37(b)(2).” Op. and Ord. (Nov.

19), at 4. “District courts have the power to control their dockets, and there comes

a point when disregard of court rules and orders becomes so serious that

sanctions, including dismissing a case sua sponte, are in order.” Alexander v.

Casino Queen, Inc., 321 Fed. Appx. 509, 511, 2009 WL 899776, at *2 (7th Cir.

Apr. 1, 2009); see also Tango Music, LLC v. DeadQuick Music, Inc., 348 F.3d 244,

247 (7th Cir. 2003) (concluding that “the judge acted properly in dismissing the

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suit for failure to prosecute after clearly warning the plaintiff’s counsel that a

further neglect of deadlines would lead to that result”).

Consequences of Dismissal on Social Objectives of the Litigation

The consequences of dismissal on the social objections of this litigation – an

employment discrimination case – were best summarized by the court in Allen v.

Interstate Brands, 186 F.R.D. 512 (S.D. Ind. 1999):

[A]ll cases have some social objectives. When a case is filed, one party

is seeking to be compensated for a wrong committed against them, to

stop a civil wrong from continuing, or to punish or to deter the wrong

doer’s actions. These factors create the social objectives of an

underlying lawsuit. That is why dismissal is such a harsh remedy.

However, not utilizing this sanction is even more harsh on a

defendant when a situation arises that merits the sanction. The court

may be left without recourse if it could not use dismissal as a

prophylactic device to guard against the indifferent attitude an

attorney has with respect to discovery and court orders, regardless of

the merits and social objectives of the claim.

186 F.R.D. at 523.

Mr. Cox’s clear record of delay, his non-compliance with discovery

deadlines, and his failure to cooperate with efforts to schedule his deposition

warrant dismissal of this action for failure to prosecute under Federal Rule of Civil

Procedure 41(b).

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Request for fees and expenses

The defendants have also requested that they be awarded reasonable

expenses and attorney’s fees for Mr. Cox’s failure to appear at the three attempted

depositions (May 22, July 11, and August 22, 2014). Federal Rule of Civil

Procedure 37(d)(3) provides that in cases such as this where the court finds that

a party’s conduct to be sanctionable, the court “must require the party failing to

act, the attorney advising that party, or both to pay the reasonable expenses,

including attorney’s fees, caused by the failure.” In accordance with the November

19 Opinion and Order, the defendants submitted their request for reimbursement

for expenses and fees in the total amount of $1,066.32. No objection to that

request was filed, and the time for doing so has passed.

Mr. Cox bears the responsibility for his actions – he received notice of each

of the scheduled depositions, but didn’t appear. Even recognizing that he secured

a new job, had a flat tire, and submitted a doctor’s note indicating that he (Mr.

Cox) told a doctor that he had been ill, the court concludes that Mr. Cox’s

continued failure to appear, or provide timely notice of his inability to appear, at

three depositions justifies awarding expenses and fees to the defendants. The

defendants’ request is reasonable and the court will hold Mr. Cox responsible for

expenses in the amount of $1,066.32.

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Conclusion

Based on the foregoing, the court 

(a) GRANTS the defendants’ motion to dismiss pursuant to

Federal Rules of Civil Procedure 37(b), 37(d), and 41(b) [docket # 47];

(b) GRANTS the defendants’ motion for sanctions [docket # 46]

and ORDERS, pursuant to Federal Rule of Civil Procedure 37(d), that

Mr. Cox reimburse the defendants for their expenses and fees in the

sum of $1,066.32 [docket # 46];

(c) DENIES as moot the defendants’ motion for stay of

scheduling deadlines [docket # 49];

(d) VACATES the pretrial conference set for May 18, 2015 and

the trial date of June 1, 2015; and

(e) ORDERS this action DISMISSED with prejudice.

This dismissal “operates as an adjudication on the merits” as the Federal Rule of

Civil Procedure 41(b) provides and is a final judgment, subject to immediate

appeal by both parties.

SO ORDERED.

ENTERED: January 22, 2015 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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