UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ERIC PHERNETTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Cause No. 2:13-cv-487 

 ) 

McDONALD’S, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on the Second Motion to Dismiss or, in the Alternative, to 

Enforce and for Sanctions [DE 80] filed by the defendant, Lowell, Inc. (incorrectly identified as 

McDonald’s), on February 16, 2015. For the following reasons, the motion is DENIED. 

Background 

 On October 22, 2014, this court granted in part and denied in part Lowell’s Motion to 

Dismiss or, in the Alternative, to Compel and to Enforce and for Sanctions [DE 61]. Within that 

order, the court noted the parties’ struggles throughout the discovery process. Specifically, the 

court explained that the plaintiff, Eric Phernetton, had displayed an unwillingness to participate 

in discovery by refusing to provide discovery responses, walking out of his deposition, and not 

following court orders. Therefore, the court fired a final warning shot before dismissing 

Phernetton’s case and issued multiple sanctions. The court ordered him to respond to each 

discovery request, to submit to a deposition, and to pay for the costs associated with his second 

deposition and filing the First Motion to Dismiss. The order also deemed admitted any statement 

he did not respond to in Lowell’s request for admissions. Furthermore, the court found that 
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Phernetton had engaged in bad faith conduct and that Lowell should not be without redress for 

the costs that his lack of cooperation had caused. 

 On November 20, 2014, Phernetton appeared for his second deposition, which lasted 

approximately six hours. The second deposition cost Lowell $450.00 in costs for a courtreporter attendance fee. See [DE 81-1]. On November 25, 2014, Lowell sent a letter to 

Phernetton’s counsel asking him to dismiss this matter pursuant to Rule 11 and requested 

payment of the $450.00 in costs pursuant to the October 22, 2014 order. On December 19, 2014, 

Phernetton indicated that he needed additional time to respond to the Rule 11 letter and did not 

respond to the request for payment. Lowell then sent multiple requests for payment that went 

unanswered. 

 On January 20, 2015, Lowell sent a fifth request for payment, and Phernetton responded 

the following day that he was surprised by the cost and asked for the court reporter’s contact 

information. On January 22, 2015, Lowell provided the court reporter’s contact information and 

asked Phernetton to pay the $450.00 within one week. On February 16, 2015, the court reporter 

confirmed that neither Phernetton nor his counsel had attempted to contact her regarding the 

invoice. Additionally, Phernetton has not paid the $450.00. 

 Phernetton indicated that he retained pro bono counsel a few weeks before the October 

22, 2014 order. Since retaining counsel, he has responded to Lowell’s discovery requests, 

completed his deposition, and provided his initial disclosures in compliance with the October 22, 

2014 order. Furthermore, he stated that his goal was to enforce a settlement agreement that took 

place in November 2013 and that he tendered discovery to Lowell regarding that issue. 

Phernetton stated that he was indigent, could not afford any payments towards the sanctions 

award, and qualified for pro bono counsel through the NWI Volunteer Lawyers, Inc. He also 
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indicated that he has been unemployed since before 2013 and has Social Security Disability 

income of $567.00 per month. 

Discussion 

 Federal Rule of Civil Procedure 41(b) provides that “[i]f a plaintiff fails to prosecute or to 

comply with these rules or a court order, a defendant may move to dismiss the action or any 

claim against it.” Dismissal is the most severe sanction and generally is applied only when a 

party has displayed exceptional misconduct or when less drastic sanctions have proven 

unavailing. Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014); Sun v. Bd. of Trs. of the 

Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007) (explaining that the Seventh Circuit has a wellestablished policy of favoring trial on the merits over default judgments); Maynard v. Nygren, 

332 F.3d 462, 467–68 (7th Cir. 2003); Danis v. USN Commc’ns, Inc., 2000 WL 1694325, at 

*33–34 (N.D. Ill. Oct. 23, 2000) (“Because a default judgment deprives a party of a hearing on 

the merits, the harsh nature of this sanction should usually be employed only in extreme 

situations where there is evidence of willfulness, bad faith or fault by the noncomplying party.”) 

(citing Societe Internationale v. Rogers, 357 U.S. 197, 209, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 

(1958) (explaining that a party should be sanctioned with dismissal only in extreme situations 

where there is evidence of willfulness, bad faith, or fault by the noncomplying party)). When 

considering whether to employ this sanction, the court must “weigh not only the straw that 

finally broke the camel’s back, but all the straws that the recalcitrant party piled over the course 

of the lawsuit.” Domanus, 742 F.3d at 301. The court first must consider whether less severe 

sanctions will remedy the damage. Marrocco v. Gen. Motors, 966 F.2d 220, 223–24 (7th Cir. 

1992). 
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 The Seventh Circuit has employed two different standards for determining whether 

dismissal is an appropriate sanction. When assessing dismissal for want of prosecution or the 

failure to comply with a court order, the court must consider whether there has been a clear 

record of delay or contumacious conduct or whether less drastic sanctions have been unavailing. 

Domanus, 742 F.3d at 301; Maynard, 332 F.3d at 468–69; Large v. Mobile Tool Int’l, Inc., 

2008 WL 2116967, at *7 (N.D. Ind. May 20, 2008) (“[C]ontumacious conduct merits strong 

sanctions, and when the court uses its inherent power to root out contumacious conduct, no 

showing of willfulness, bad faith, fault or even prejudice is required.”). 

 Lowell has argued that the court should dismiss Phernetton’s case because he has ignored 

the court’s final warning by failing to comply with the October 22, 2014 order. Lowell indicated 

that Phernetton has failed to comply because he has not paid for the costs to conduct his second 

deposition. Considering the court’s previous finding that Phernetton had engaged in bad faith 

conduct and that the court issued a final warning, Lowell claimed that his violation of the 

October 22, 2014 order warrants dismissal. See Allen v. Chi. Transit Auth., 317 F.3d 696, 702 

(7th Cir. 2003) (“A willful failure to pay . . . monetary sanctions imposed by that court strikes us 

as a reasonable ground for dismissing an appeal . . . . [b]ut not in this case, as there has been no 

determination that [appellant]’s continuing failure to pay is willful, which it is not if he simply 

does not have any money.”). 

 Phernetton has claimed that he is indigent and cannot afford the $450.00 sanction. He 

noted that he has complied with each provision of the October 22, 2014 order except the order to 

pay Lowell’s costs for the second deposition. Phernetton has argued that dismissal is not 

appropriate under the current circumstances but that the court may bar future suits by Phernetton. 

Additionally, he indicated that an inability to pay is a valid defense to a court order to pay 
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sanctions. See In re Resource Tech. Corp., 624 F.3d 376, 386 (7th Cir. 2010) (“Inability to pay 

is a valid defense in a contempt proceeding, but the party raising the defense has the burden of 

proving its inability to pay.”). 

 Lowell has argued that Phernetton did not meet his burden to establish his indigence. See 

Johnson v. A.W. Chesterton Co., 18 F.3d 1362, 1366 (7th Cir. 1995) (“The burden is on the 

sanctioned party to show that he was unable to pay a reasonable award.”). For example, it noted 

that Phernetton made baseless claims of indigence without documentary support. However, 

Lowell claimed that dismissal was appropriate even if Phernetton had demonstrated his 

indigence because his refusal to pay violated a court order. Furthermore, it claimed that this 

violation demonstrated that monetary sanctions were insufficient and that this matter should be 

dismissed because Phernetton violated this court’s final warning. 

 It is undisputed that Phernetton violated this court’s October 22, 2014 order by failing to 

pay Lowell’s costs for the second deposition. Moreover, that violation occurred after this court 

issued a final warning following Phernetton’s bad faith conduct. However, Phernetton also 

rectified the discovery issues by participating in his second deposition, answering the 

outstanding discovery requests, and issuing his own discovery. Additionally, Phernetton has 

claimed that he is indigent and cannot afford the $450.00 sanction. 

 In support of his claim for indigence, Phernetton indicated that he qualified for pro bono 

counsel through the NWI Volunteer Lawyers, Inc. However, Lowell noted that Phernetton did 

not claim indigence previously or request to proceed informa pauperis. Furthermore, he paid the 

$400.00 filing fee to initiate this matter on December 27, 2013. Although Phernetton has 

retained pro bono counsel, that fact alone does not demonstrate that he cannot afford the $450.00 

sanction. 
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 Phernetton also claimed that he received $567.00 per month in Social Security Disability 

income. He did not indicate his assets and liabilities or whether the $567.00 encompassed his 

entire income. He also alleged that he had not worked since before 2013 based on his November 

2014 answers to interrogatories. See [DE 82-5]. However, Lowell indicated that Phernetton’s 

complaint contradicted that assertion. Specifically, Phernetton alleged a work place injury at 

McDonald’s on May 22, 2013 and that he requested a leave of absence from McDonald’s on 

September 18, 2013. See [DE 1, pg. 4]. Furthermore, his claim is based on an alleged settlement 

that occurred on November 16, 2013, in which he agreed to resign his position at McDonald’s 

that day. See [DE 1, pg. 7]. Additionally, Lowell noted Phernetton’s Indiana Department of 

Workforce Development earnings transcript, which Phernetton filed on September 17, 2014. See 

[DE 64, pg. 3]. The transcript listed total wages of $13,751.55 from 2013 through the first 

quarter of 2014 from the Diocese of Gary and Modrak Investment Corporation. Therefore, the 

court does not find Phernetton’s claim that he has been unemployed since before 2013 credible. 

Phernetton did not provide sufficient documentation to demonstrate his indigence but relied on 

bald assertions that this court has found incredible. See Krumwiede v. Brighton Assocs., L.L.C., 

2006 WL 2714609, at *4 (N.D. Ill. 2006) (finding the plaintiff’s bare assertions insufficient to 

demonstrate an inability to pay sanctions). Therefore, he has not met his burden to show that he 

cannot afford the $450.00 sanction. See Johnson, 18 F.3d at 1366. 

 Although Phernetton has not fully complied with this court’s October 22, 2014 order after 

issuing a final warning, the court does not find that dismissal or further monetary sanctions are 

appropriate at this time. Since retaining pro bono counsel, he has resolved the discovery disputes 

and cooperated with Lowell. Phernetton has altered his conduct since the final warning despite 

his failure to pay the sanction award. However, this court will enforce its October 22, 2014 order 
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because Lowell should not be without redress for Phernetton’s past conduct. Therefore, 

Phernetton is ORDERED to pay $75.00 per month until the $450.00 sanction is fully paid. The 

payment is due the first of each month starting May 1, 2015. Additionally, the failure to make 

payments may result in dismissal of Phernetton’s claims. 

 Based on the foregoing reasons, the Second Motion to Dismiss or, in the Alternative, to 

Enforce and for Sanctions [DE 80] is DENIED. 

 ENTERED this 13th day of April, 2015. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge