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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ERIC PHERNETTON, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 2:13-cv-487 

 ) 

McDONALD’S ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on the Motion to Dismiss Or, In the Alternative, to 

Compel and to Enforce and for Sanctions [DE 61] filed by the defendant, Lowell, Inc. 

(incorrectly sued as McDonald’s), on September 4, 2014, and the Petition for Partial Relief From 

the Court’s August 12, 2014 Order [DE 67] filed by the plaintiff, Eric Phernetton, on September 

24, 2014. For the following reasons, the Motion to Dismiss Or, In the Alternative, to Compel 

and to Enforce and for Sanctions [DE 61] is GRANTED IN PART and DENIED IN PART, 

and the Petition for Partial Relief From the Court’s August 12, 2014 Order [DE 67] is 

GRANTED.

Background 

 Throughout the discovery process, the parties have struggled to work together. On 

March 25, 2014, Lowell’s counsel, Jason D. Keck, attempted to speak with the plaintiff, Eric 

Phernetton, regarding the parties’ Federal Rules of Civil Procedure 26(f) report. Phernetton 

refused to respond substantively to Keck. On April 1, 2014, Lowell served its First Set of 

Interrogatories, First Set of Requests to Admit, and First Set of Production Requests upon 
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Phernetton. On April 9, 2014, Phernetton filed a “Response to Admit” in which he stated that he 

would “give some of a little of answer” to Lowell’s Request to Admit. Phernetton admitted to 

Lowell being his only place of employment during the specified time frame. He further stated 

that he elected not to be deposed. Phernetton explained that he would not respond to the 

discovery requests or submit to a deposition because he was prohibited under the Health 

Insurance Portability and Accountability Act (HIPAA), the Social Security Act, the Constitution, 

and federal tax laws. He also claimed that he would commit perjury if he was required to submit 

to a deposition. 

 Prior to August 6, 2014, Lowell had twice noticed Phernetton’s deposition. Phernetton 

refused to respond and canceled at the last minute. On July 3, 2014, Keck sent Phernetton an email asking Phernetton to provide dates that he was available for a deposition to take place in 

Hammond, Indiana. Keck advised Phernetton that if he failed to appear or failed to answer, he 

would file a motion asking the court to dismiss his claim. Phernetton responded with the above 

stated reasons for being unable to attend the deposition. Keck unilaterally selected August 6, 

2014 to conduct Phernetton’s deposition and served him notice of the date. Phernetton 

responded that he could not attend and filed a motion to continue his deposition. The court did 

not rule on Phernetton’s motion by August 6, 2014. Lowell refused to reschedule the deposition 

and instructed Phernetton to appear. 

 Phernetton did appear at his deposition on August 6, 2014 but refused to answer several 

questions. After approximately one hour, Phernetton informed Lowell’s counsel that he was 

declaring the deposition over. Lowell’s counsel warned Phernetton that if he terminated the 

deposition without cause he would file a motion asking that the case be dismissed due to 

Phernetton’s continued refusal to cooperate in discovery. Phernetton left and filed a document 
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entitled “Response to Deposition” on August 8, 2014. In it, he stated that he elected to stop his 

deposition due to the questions Keck was asking. He complains that the questions were 

irrelevant and that Keck had not provided him with evidence showing that there is a Medicare 

lien. 

On August 12, 2014, the court ruled on the motions Lowell filed concerning the problems 

the parties were facing during discovery. The court instructed Phernetton that his objections 

were meritless, that he must provide responses to Lowell’s discovery requests or raise a valid 

objection, and that he must submit to a deposition. Specifically, the court explained that the 

Medicare lien was not relevant to this action. The court gave Phernetton 14 days to provide 

responses to Lowell’s Requests to Admit, Interrogatories, and Request for Production and 

advised Phernetton that failure to comply with discovery may result in sanctions. Phernetton 

also was directed to provide his initial disclosures by this date. As of the date Lowell filed the 

present motion, September 4, 2014, Phernetton had not served his responses to Lowell’s first set 

of discovery and had failed to provide his initial disclosures. Phernetton filed a response to 

Lowell’s motion, stating that Lowell did not try to re-schedule his deposition and that he will 

attend another deposition and have other witnesses present. 

On September 24, 2014, Attorney Benjamin Fryman entered an appearance on behalf of 

Phernetton and filed a motion for partial relief of the court’s August 12, 2014. In it, Phernetton 

asks for an additional 30 days to respond to the outstanding discovery requests. 

Discussion 

Federal Rule of Civil Procedure 37(b)(2) gives the court authority to sanction a party for 

failing to comply with a court order and states in relevant part: 
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(2) Sanctions in the District Where the Action Is Pending. 

(A) For Not Obeying a Discovery Order. If a party or a party's officer, 

director, or managing agent--or a witness designated under Rule 30(b)(6) 

or 31(a)(4)--fails to obey an order to provide or permit discovery, 

including an order under Rule 26(f), 35, or 37(a), the court where the 

action is pending may issue further just orders. They may include the 

following: 

(i) directing that the matters embraced in the order or other 

designated facts be taken as established for purposes of the action, 

as the prevailing party claims; 

(ii) prohibiting the disobedient party from supporting or opposing 

designated claims or defenses, or from introducing designated 

matters in evidence; 

(iii) striking pleadings in whole or in part; 

(iv) staying further proceedings until the order is obeyed; 

(v) dismissing the action or proceeding in whole or in part; 

(vi) rendering a default judgment against the disobedient party; or 

(vii) treating as contempt of court the failure to obey any order 

except an order to submit to a physical or mental examination. 

The authority to sanction a non-compliant party also arises from the court=s inherent power to 

manage its cases and achieve orderly disposition. See Chambers v. NASCO, Inc., 501 U.S. 32, 

44, 47,111 S.Ct. 2123, 2132, 2134, 115 L.Ed.2d 27 (1991) (explaining that the court has broad 

inherent powers to sanction a party); Barnhill v. United States, 11 F.2d 1360, 1367 (7th Cir. 

1993). 

The court should consider several factors when determining which sanctions to employ, 

including: Athe frequency and magnitude of the [party's] failure to comply with court deadlines, 

the effect of these failures on the court's time and schedules, the prejudice to other litigants, and 

the possible merits of the plaintiff's suit.@ Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir. 

2003) (citing Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998)). The court 

commits a legal error if it dismisses a suit after the first problem without exploring alternatives or 

explaining why alternative sanctions would not be worthwhile. Sroga v. Huberman, 722 F.3d 
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980, 982 (7th Cir. 2013). The sanctions must be proportional to the party=s misconduct. Collins 

v. Illinois, 554 F.3d 693, 696-98 (7th Cir. 2009). The court measures this by weighing the 

proposed sanctions against the egregiousness of the party=s conduct. Barnhill, 11 F.3d 1368. 

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, No. 13-2435, 2014 WL 408723, * 8 (7th Cir. Feb. 4, 2014); Sun v. Board 

of Trustees, 473 F.3d 799, 811 (7th Cir. 2007) (explaining that the Seventh Circuit has a well 

established policy of favoring trial on the merits over default judgments); Maynard v. Nygren, 

332 F.3d 462, 467-468 (7th Cir. 2003); Danis v. USN Communications, Inc., 2000 WL 

1694325, 33-34 (N.D. Ill. Oct. 23, 2000) (ABecause 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 Aweigh 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, 2014 WL 408723 at *8. The court first must consider whether less 

severe sanctions will remedy the damage. Marrocco v. General Motors, 966 F.2d 220, 223-224 

(7th Cir. 1992). 

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 
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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, 2014 WL 408723 at *8; Maynard, 332 F.3d at 468-469; Large v. Mobile Tool 

International, Inc., 2008 WL 2116967, *7 (N.D. Ind. 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."). AA slightly different 

requirement ̶ a finding of willfulness, bad faith or fault ̶ comes into play when dismissals are 

used specifically as a discovery sanction under Fed.R.Civ.P. 37.@ Maynard, 332 F.3d at 468-469 

(citing In re Golant, 239 F.3d 931, 936 (7th Cir. 2001); Langley v. Union Electric Co., 107 F.3d 

510, 514 (7th Cir. 1997); In re Rimsat, Ltd., 212 F.3d 1039, 1046-47 (7th Cir. 2000) (requiring a 

finding of bad faith when a district court dismisses a case under the inherent powers of the 

court)). AThat is, even without >a clear record of delay, contumacious conduct or prior failed 

sanctions,= a court can apply the sanction of dismissal for Rule 37 violations with a finding of 

willfulness, bad faith or fault, as long as it first considers and explains why lesser sanctions 

would be inappropriate.@ Maynard, 332 F.3d at 468. See also, Melendez v. Illinois Bell Co., 79 

F.3d 661, 671 (7th Cir. 1996) (ASanctions are proper upon a finding of wilfulness, bad faith, or 

fault on the part of the noncomplying litigant.@). 

Bad faith is Aconduct which is either intentional or in reckless disregard of a party=s 

obligations to comply with a court order.@ Marrocco, 966 F.2d at 224; Maynard, 332 F.3d at 

470 (explaining that bad faith is exhibited where a party fails to comply with a court order or 

provides false or misleading responses). Similarly, fault does not mean the party=s subjective 

motivation, but rather Athe reasonableness of the conductCor lack thereofC which eventually 
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culminated in the violation.@ Marrocco, 966 F.2d at 224; Langley, 107 F.3d at 514. The 

Seventh Circuit requires clear and convincing evidence of the discovery abuse to justify a default 

judgment because of the harsh nature of the penalty and the court=s policy of favoring trial on the 

merits. Maynard, 332 F.3d at 468 (A[C]onsidering the severe and punitive nature of dismissal as 

a discovery sanction, a court must have clear and convincing evidence of willfulness, bad faith or 

fault before dismissing a case.@); Larson v. Bank One Corp., 2005 WL 4652509, *9 (N.D. Ill. 

August 18, 2004) (explaining that a default judgment requires clear and convincing evidence of 

the sanctionable conduct, although an issue-related sanction requires only a preponderance of the 

evidence). 

 Phernetton continuously has displayed an unwillingness to participate in discovery. 

Although the court did not explain the reasons his objections were meritless until the August 12, 

2014 Opinion and Order, pro se litigants are not excused from knowing their obligations under 

the Federal Rules of Civil Procedure. AAs a pro se litigant, [a] [p]laintiff is permitted a more 

lenient standard with respect to her pleadings than that imposed on a practicing attorney.@ 

Cintron v. St. Gobain Abbrassives, Inc., 2004 WL 3142556, * 1 (S.D. Ind. Nov. 18, 2004). The 

court recognizes that pro se litigants face special challenges that litigants represented by counsel 

do not, however, pro se litigants are not excused from following procedural rules simply because 

the Arules of procedure are based on the assumption that litigation is normally conducted by 

lawyers.@ Lee v. Wal-Mart Stores, 1994 WL 899240, * 1 (N.D. Ind. Apr. 12, 1994). The Lee

court explained, 

[the court] ha[s] never suggested that procedural rules in ordinary civil litigation 

should be interpreted so as to excuse mistakes by those who proceed without 

counsel. As we have noted before, Ain the long run, experience teaches that strict 
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adherence to the procedural requirements specified by the legislature is the best 

guarantee of evenhanded administration of the law.@

Lee, 1994 WL 899240 at *1 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S. 

Ct. 2486, 2497, 65 L.Ed.2d 532 (1980)). 

 At the Rule 16 preliminary pretrial conference, the court explained the discovery process 

to Phernetton. He was advised that both parties had the right to serve interrogatories, requests 

for admissions, and requests for documents, and that the receiving party must provide written 

responses. The court also told Phernetton that both sides had the right to take depositions but 

that the deposing party would bear the cost of hiring a court reporter. The record also is clear 

that on multiple occasions Lowell’s counsel informed Phernetton of his obligations to comply 

with discovery and the possible sanctions of failing to do so. Yet, Phernetton did not heed these 

warnings and continuously refused to provide discovery responses except those that he 

determined were relevant and should be responded to. The discovery rules do not permit a party 

to decide unilaterally which discovery requests should be responded to. Rather, a party must 

raise a valid objection if he believes that a discovery request is not proper. Phernetton did not 

do this on any occasion. Rather, he repeatedly cited to Acts that were irrelevant to the present 

litigation and complained that Lowell had not provided evidence of a lien. Even if Lowell was 

required to provide such “evidence”, this does not relieve Phernetton of his obligation to comply 

with discovery. The court would not accept such excuses for complying with discovery from a 

represented party, and although Phernetton should be given some leeway for his then pro se

status, the court cannot overlook that Phernetton was obligated to comply with the federal rules 

and engage in the discovery process and that his failure to cooperate resulted in expense to 

Lowell. 
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 The court might be willing to assume that Phernetton did not understand that his 

objections to the written discovery were invalid until the court explained as much in its August 

12, 2014, except that Phernetton also failed to comply with discovery following the court’s 

directive to provide responses by August 26, 2014. Moreover, the record is clear that Phernetton 

was unwilling to work with Lowell’s counsel even on matters that are not subject to objections, 

such as agreeing to dates for the parties’ planning report, providing initial disclosures, and 

selecting dates for his deposition. Phernetton also was aware from both the court informing him 

at the Rule 16 preliminary pretrial conference and from Lowell’s counsel that both parties had 

the right to take depositions. Yet, instead of raising objections, he walked out of his deposition. 

 At this stage, Lowell has demonstrated that Phernetton has engaged in bad faith conduct 

deserving of sanctions. He repeatedly failed to answer the discovery requests, did not work with 

Lowell’s counsel, and ignored the court’s order to provide discovery responses. Discovery is a 

vital part of the litigation process, and without it Lowell would be deprived of the information it 

needs to prepare its defense. Since the court issued its August 12, 2014 Opinion and Order, 

Phernetton has obtained counsel, and the court is hopeful that this will alleviate the ongoing 

discovery problems. For this reason, the court will fire one final warning shot before dismissing 

Phernetton’s case. However, this should not leave Lowell without redress for the costs it has 

incurred as a result of Phernetton’s unwillingness to cooperate. 

Due to his failure to respond, any objections Phernetton has to Lowell’s interrogatories 

and requests for production are considered waived, and he must respond fully to each and every 

request within fourteen days. See Rule 33(b)(4) (explaining that any ground for objecting to an 

interrogatory not stated timely is waived). The statements he did not respond to in Lowell’s 

request for admissions are deemed admitted. See Rule 36(a)(3) (explaining that a matter is 
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deemed admitted if the party to whom the request is directed does not serve a response within 30 

days). Phernetton must submit to a deposition in Chicago within fourteen days, as will be set by 

Lowell. Phernetton will be responsible for the costs associated with his second deposition and 

the costs Lowell incurred filing the present motion. Lowell is directed to file an affidavit setting 

forth those costs. 

 Phernetton’s newly obtained counsel also seeks relief from the court’s August 12, 2014 

Opinion and Order, asking for additional time to respond to the outstanding discovery and to 

prepare Phernetton for his deposition. Lowell argues that the motion should be viewed as a 

motion for reconsideration and that Phernetton has not demonstrated any grounds upon which 

reconsideration is warranted. However, Phernetton is not seeking a change in the substance of 

the court’s order. Rather, the motion asks for an extension of time to comply. For this reason, 

the court will view the request as a motion for an extension of time rather than as a motion to 

reconsider. 

Federal Rule of Civil Procedure 16(b) provides that a schedule shall not be modified 

except upon a showing of good cause and by leave of the court. See also Campania 

Management Co., Inc., v. Rooks, Pitts & Poust, 290 F.3d 843, 851 (7th Cir. 2002); Briesacher 

v. AMG Resources, Inc., 2005 WL 2105908 at *2 (N.D. Ind. Aug.31, 2005). Good cause 

sufficient for altering discovery deadlines is demonstrated when a party shows that, Adespite their 

diligence, the established timetable could not be met.@ Tschantz v. McCann, 160 F.R.D. 568, 

571 (N.D.Ind. 1995). 

Lowell’s counsel pointed out that Phernetton’s reasons for seeking the extension of time 

are not entirely valid. In the motion, Phernetton’s counsel stated that he does not have copies of 
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the outstanding discovery. However, the discovery requests are available on the court’s 

electronic docketing system and were available to him as of the date he entered his appearance. 

Regardless, Phernetton’s counsel did not receive the case until after the deadline for complying 

with the court’s order had expired. It is reasonable that Phernetton’s counsel would need 

additional time to get caught up with the case. For this reason, the court finds that Phernetton 

has demonstrated good cause to extend the deadline. Phernetton must provide his discovery 

responses, consistent with the sanctions set forth above, within 28 days of this order. 

 Based on the foregoing reasons, the Motion to Dismiss Or, In the Alternative, to Compel 

and to Enforce and for Sanctions [DE 61] is GRANTED IN PART and DENIED IN PART 

and the Petition for Partial Relief From the Court’s August 12, 2014 Order [DE 67] is 

GRANTED.

 ENTERED this 22nd day of October, 2014 

/s/ Andrew P. Rodovich 

United States Magistrate Judge