UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DARA M. GRIMES, )

)

 Plaintiff, )

)

v. ) 2:13-cv-00036-PPS-APR

)

GARY COMMUNITY SCHOOL )

CORPORATION, )

CITY OF GARY, D. GOSHAY AND )

A. BRADSHAW, )

)

 Defendants. )

OPINION AND ORDER

The City of Gary seeks reconsideration of my earlier ruling entering default

against it. This case has been plagued by inattentive lawyering on behalf of the

defendants. Because this is a motion to reconsider, and there is a long chain of docket

filings that recount the minutiae of this case, I won’t do it again here. The City of Gary

neglected this case, passing it from one lawyer to another and failing to provide

discovery that was requested by the plaintiff then ordered by the Court. The failure

doesn’t appear to have been willful, but neglectful. Eventually I granted default against

Gary because it appeared that Gary had refused to comply with a discovery order

several times, and had no intention of complying. Gary has now clarified that it did

eventually comply, and that it had done so before I granted default – although Gary
didn’t bother to notify me of that fact – and so it wants me to reconsider the grant of default.

Very briefly, here’s the factual background: Plaintiff Dara Grimes is a social

worker, and back in 2011 one of her clients was a student who had a disability. The

student was facing expulsion from school, and Grimes was present at the school when

the news of his expulsion was being delivered. She attempted to intervene on the

student’s behalf. One thing led to another, and she was arrested. The two officers who

arrested Grimes were allegedly employed at the time of Grimes’s arrest by both the

Gary Schools and the City of Gary. In this § 1983 case brought against the arresting

officers, Gary Schools, and the City of Gary, Grimes claims that she was wrongfully

arrested in violation of her constitutional rights.

None of the defendants did much in the way of discovery in this case. Gary

Schools participated a bit; Gary not at all. Judge Rodovich’s Recommendations

thoroughly summarize the relevant facts that led to Gary’s default. In short, Grimes

made discovery requests of Gary in February 2014. Gary didn’t provide the discovery

so Grimes moved to compel responses in April 2014, and the court granted that motion

to compel in July 2014. The Order granting the motion to compel (DE 42) ordered a

response to Grimes’s request for an affidavit and employee records for Defendant

Goshay (one of the two officers involved in Grimes’s arrest). Gary didn’t comply with

the order granting the motion to compel, and Grimes moved for sanctions in August

2014. (DE 45.) The lawyer handling the case for Gary up to this point moved to

withdraw and that was granted (DE 47), leaving the City unrepresented. Several

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months went by before another lawyer appeared on behalf of the City. So the motion for

sanctions was finally responded to by the City in December 2014. In that response, the

City argued that its lackadaisical approach to discovery resulted from its rotating

attorneys and a “communication breakdown,” and saying that Gary would provide

“prompt and complete discovery responses” going forward. (DE 54 at 7.) Judge

Rodovich found Gary’s excuses wanting and recommended in January 2015 that default

be entered against Gary and that its attorney be sanctioned personally. (DE 60,

recommending that DE 45 be granted.)

I scheduled a hearing to talk to the parties and figure out what was actually

going on, and due to various scheduling conflicts that hearing was continued multiple

times. At the April 7, 2015, hearing I ordered Gary to provide the discovery that was the

subject of the motion to compel by April 17, 2015. Gary’s counsel prepared some

discovery materials and arranged their delivery to Grimes around April 16. (DE 85 at 2.)

Those materials did not include the personnel records that were the subject of the

original motion to compel and all that followed — that request came before Gary’s

current counsel was on the case. On April 20 Gary filed a notice with the court stating

that it had complied with the discovery order. (DE 85 at 3.) The fundamental problem

with this is that although Gary did provide discovery, it didn’t actually comply with the

order because Gary’s attorney didn’t understand what the order required. On April 28,

2015, Grimes filed a reply on her motion for sanctions. In the same document (titled in a

second header on the first page) Grimes brought a “Motion to Compel Production

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Pursuant to Court Order Entered April 7, 2015.” (DE 79.) Grimes’s filing states that

Gary sent a response to requests for production, but had still not responded to the

request for personnel records that was the subject of the order on the motion to compel.

(DE 79 at 4.) Gary’s attorney states in the motion for reconsideration that this was the

first he’d heard of personnel records. (DE 85.) Gary then got the personnel records and

provided them to Grimes at Grimes’s deposition on May 9, 2015. (DE 85 at 4.) Gary

didn’t file a corresponding notice, nor did it respond to the new motion to compel

(although this is a more understandable mistake because Grimes stuck this new motion

to compel in a reply on her motion for sanctions). So, not knowing that Gary had finally

provided the long-awaited personnel records nearly a month before, I adopted Magistrate

Judge Rodovich’s report and recommendation and entered default against Gary on the

basis of its failure to provide the personnel records. (DE 82.) Final judgment against

Gary has not been entered.

Gary moved for reconsideration of the entry of default. (DE 85.) (Gary filed its

motion on both July 1 and July 2: DE 84 and DE 85 appear to be the same document,

with the same title and attachments, but DE 84 was filed a day earlier and has a

hyperlink to the order of which the motion seeks reconsideration. I am using the laterfiled version of the motion to increase the likelihood that it is the version the attorney

filer intended. DE 84 is therefore STRICKEN from the record as redundant and filed in

error.) 

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Gary’s motion is styled as one which seeks “reconsideration” yet it cites to

Federal Rule of Civil Procedure 60(b)(5) as the vehicle by which relief should be

granted. But Rule 60(b)(5) governs relief from judgment. What Gary really wants me to

do is reconsider my earlier ruling which entered default against it. Such a motion is

more properly brought under Federal Rule of Civil Procedure 59(e). (Gary timely filed

its motion for reconsideration within the 28 days required by Rule 59(e).) So I will

construe Gary’s motion as one under Rule 59(e). In all events, Grimes opposes

reconsideration. (DE 86.) In addition to addressing the issue of default and the

discovery issue that led to it, Grimes attempts to raise additional issues with Gary’s

discovery responses (unrelated to the motions and orders addressing the failure to

respond regarding the personnel file). Default was based on a linear series of events

stemming from a particular discovery dispute, and this response is not the proper place

to raise additional issues.

As I have previously noted, entering a default as a sanction is drastic, and isn’t

done lightly. It is reserved for extreme situations “when there is a clear record of delay

or contumacious conduct, or when other less drastic sanctions have proved

unavailable.” Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir. 2003); see also, Domanus v.

Lewicki, 742 F.3d 290, 301 (7th Cir. 2014). The Court must carefully analyze the situation

to apply sanctions proportionate to the misconduct. Rice, 333 F.3d at 784. The Seventh

Circuit certainly prefers disposition on the merits to default. See, e.g., Cracco v. Vitran

Express, Inc., 559 F.3d 625, 631 (7th Cir. 2009). I do, as well. 

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Here, although it doesn’t excuse Gary’s prior insouciance, I was working with

incomplete and inaccurate information when I granted default against Gary. Gary

should have informed me that it had finally complied once its current attorney

understood what was required, but the much more important fact is that it did comply.

I granted default based on the understanding that Gary had failed to produce the

personnel records. But as it turns out, this wasn’t the case. The personnel records had

been produced. This was a manifest error of fact which provides a basis to reconsider

under Rule 59(e). Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014). 

To be clear: I am not and have no intention of reopening discovery. Gary made

its discovery-devoid bed and will have to lie in it. Dates have been set for summary

judgment briefing, the final pretrial conference, and trial, and this order has no impact

on those, nor does it signal a willingness to change those. It merely means that Gary

may seek a merits determination on summary judgment and at trial, alongside Grimes,

Gary Schools, and the individual defendants.

There is one more issue that I need to address. This is an issue that I previously

raised with Gary’s current attorney, Gregory Thomas. At a hearing I asked him if he

represented the two individual police officer defendants in addition to representing the

City of Gary. He looked very confused and said that he unequivocally did not. The

docket agrees with that statement – neither he nor any City of Gary attorney has ever

filed an appearance on behalf of either man (they are represented by the same attorney

as Gary Schools). I asked Attorney Thomas why, if he doesn’t represent them, the very

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first sentence of his filings reads as follows: “Comes now Defendants, City of Gary, D.

Goshay and A. Bradshaw by counsel . . . .” Thomas explained at the hearing that he had

not written that text, and had borrowed it from filings drafted by previous Gary

attorneys assigned to the case. He did not explain why he hadn’t read the text he was

filing with the district court, or, if he had read it, why he didn’t edit it to accurately

reflect representation in this case. I made the reasonable request that he review and edit

his filings going forward, and that he not purport to represent parties he doesn’t

represent. 

With this back and forth in court as a backdrop, I was stunned to see that in the

very first sentence of his current motion, Mr. Thomas again stated that he represents

both the City of Gary and the individual officers. Here’s what the pleading says:

“Comes [sic] now Defendants, City of Gary, D. Goshay and A. Bradshaw by counsel,

pursuant to FRCP 60(B)(5) and (6) and FRCP 55(C) and files [sic] its [sic] Motion to

Reconsider its [sic] Order and in support of said Motion Defendants’ [sic] state as

follows: . . . .” (DE 85 at 1, ¶ 1.) For someone seeking to reassure the Court that this case

will run more smoothly going forward, this kind of sloppiness (in the first sentence,

with previous warning from the Court) is not acceptable. 

* * * 

The City of Gary’s motion for reconsideration of the imposition of the sanction of

default against Gary is GRANTED. The grant of default is VACATED. All of the

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previously-set deadlines remain unchanged, and apply to Gary as they apply to the

other defendants.

DE 84 is STRICKEN from the record as redundant and filed in error.

SO ORDERED.

ENTERED: August 19, 2015

/s/ Philip P. Simon

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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