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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

KENNETH MARCUM, ) 

 ) 

 Plaintiff, ) 

v. ) 1:13-CV-158 

 ) 

GRAPHIC PACKAGING INTERNATIONAL, ) 

INC., and CIGNA LEAVE SOLUTIONS, ) 

 ) 

 Defendants. ) 

REPORT AND RECOMMENDATION

 Before the Court is Defendants Graphic Packaging International, Inc. (“GPI”), and Life 

Insurance Company of North America’s (“LINA”) (incorrectly identified as Cigna Leave 

Solutions in Plaintiff’s Complaint) fully-briefed Motion to Dismiss or, In the Alternative, to 

Enforce. (Docket # 26.) Defendants contend that dismissal or enforcement of the Court’s 

previous Order compelling Kenneth Marcum to supplement his Answers to GPI’s Interrogatories 

is appropriate because he has continued to hinder discovery by providing incomplete and 

inaccurate Answers to GPI’s Interrogatories and has made several material misrepresentations to 

the Court and Defendants. At oral argument on October 18, 2013, Marcum responded that while 

his answers may be “spotty,” they are not “elusive,” and dismissal would be harsh at this early 

stage of discovery. 

The motion was referred to the undersigned Magistrate Judge by District Judge Rudy 

Lozano for the issuance of a Report and Recommendation. (Docket # 28.) Having reviewed the 

record and in accordance with 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), 

and Local Rule 72-1, the undersigned Magistrate Judge recommends that Defendants’ motion to 

dismiss be denied, the motion to enforce be granted, and Marcum receive sanctions 
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commensurate with his behavior. This Report and Recommendation is based on the following 

facts and principles of law. 

A. FACTUAL AND PROCEDURAL BACKGROUND 

 Marcum filed this Family and Medical Leave Act (“FMLA”) case against Defendants in 

state court on April 22, 2013. (Docket # 1.) After the case was removed, the parties held a Rule 

26(f) Preliminary Pretrial Conference. The Court subsequently adopted the Report of the 

Parties’ Planning Meeting and set the Rule 26 initial disclosure deadline for July 13, 2013, and 

established a May 16, 2014, discovery deadline. (Docket # 13.) 

 On August 16, 2013, Defendants filed a Motion to Compel asking the Court to direct 

Marcum to fully respond to GPI’s Interrogatories, tender his initial disclosures, and pay 

Defendants’ attorney’s fees associated with the motion. (Docket # 21.) Defendants argued that 

prior to filing the motion they repeatedly attempted to contact Marcum’s counsel to inform him 

that his Answers were late, and after the initial Answers were received, to discuss their 

deficiencies. 

 The Court set the matter for a hearing and ordered Marcum and his counsel to be present. 

(Docket # 22.) At the August 28, 2013, hearing, however, neither Marcum nor his counsel 

appeared. After hearing argument and reviewing the record, the Court granted Defendants’ 

motion in part stating “Pla ordered to serve supplemental responses to Dft GPI’s Interrogatories 

#4, #5, #7, #10, #13, and #14 . . . by 9/6/2013.” (Docket # 23.) The Court took the issue of fees 

under advisement and set a show cause hearing for September 20, 2013, so Marcum and his 

counsel could explain why they were not present at the August 28, 2013, hearing. (Docket # 24.) 

 On September 5, 2013, Marcum submitted his supplemental Answers to GPI’s 

Interrogatories. On September 18, 2013, Defendants filed the instant motion, arguing that 
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Marcum’s supplemental Answers to GPI’s Interrogatories 4, 5, 10, 13, and 14 were deficient and 

that dismissal was warranted. (Docket # 26.) On September 20, 2013, the Court conducted the 

show cause hearing. (Docket # 27.) During the hearing, Marcum disputed GPI’s contention that 

his supplementary Answers were deficient. Given the dispute, the Court set the Motion to 

Dismiss for oral argument on October 18, 2013. (Docket # 36.) In the meantime, on September 

25, 2013, the Court awarded Defendants attorney’s fees for their Motion to Compel under Rule 

37(a)(5)(A) in the amount of $3,085.50. (Docket # 32.) 

At the October 18, 2013, hearing, the Court and counsel discussed at length the adequacy 

of Marcum’s supplemental Answers to GPI’s Interrogatories 4, 5, 10, 13, and 14. 

 In particular, Interrogatory 4 asks about when, since January 2008, Marcum sought 

medical assistance, who he saw, the care sought and received, and any related documents. In his 

initial Answer, submitted before the Motion to Compel, Marcum did not object to the 

Interrogatory and represented that he was sending executed medical release forms, but did not 

actually send them. 

After the Court granted the Motion to Compel, Marcum supplemented his Answer by 

tendering an executed, but blank, medical release form. The form was essentially useless, 

however, since Marcum failed to indicate who to direct the releases to, the dates for treatment, 

care received, or any documentation. 

 At the October 18, 2013, hearing, and in his response brief, Marcum argued that because 

he does not have his medical information the executed blank medical release form should be 

sufficient since the Defendants do have access to this information. In addition, Marcum argued 

that his medical records are irrelevant now, anyway, because he abandoned any claim for 

emotional distress. In response, Defendants underscored the relevancy of the information and 
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reiterated that they do not have access to his medical records. Ultimately, by the end of the 

hearing, however, Marcum expressed a willingness to comply. 

The Court next addressed Interrogatories 5 and 13 asking Marcum to name and provide 

contact information for any persons he believes have knowledge about the case or that he 

discussed it with, and the matters about which they have knowledge. In his initial Answers, 

before the Motion to Compel, Marcum indicated that while he talked to several persons about the 

case, they wanted to remain anonymous. After the Motion to Compel was granted, Marcum 

supplemented his Answers by simply stating, without elaboration, “Ted Bates; Cherri Marcum; 

and April Kemp.” 

 At the October 18, 2013, hearing, when asked why he had not yet provided the witnesses’ 

contact information, Marcum claimed he did not know it. When asked if that was entirely true, 

since one witness was his wife, Cherri Marcum, Marcum’s counsel reiterated that Marcum only 

knew the witnesses by name and did not have their contact information. When pressed further, 

however, Marcum, speaking directly to the Court, admitted that although he did not have any 

contact information at the time the Interrogatories were completed, he does so now. 

Nevertheless, he still has not supplemented his Answers to Interrogatories 5 and 13. 

Moving on, the Court took up Marcum’s response to Interrogatory 10, asking for the 

components of his total damages and how they were calculated. In his initial Answer, before the 

Motion to Compel, Marcum answered by stating that his attorney would calculate his damages. 

After the Court granted the Motion to Compel, Marcum supplemented his Answer stating, in its 

entirety, “$19.00/hr x 40 = 760.00/wk, No unemployment, $15,200.” 

 At the September 20, 2013, show cause hearing, Marcum repeatedly stipulated that he 

was limiting his damages to only lost wages. Marcum also explained his brief supplementary 
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Answer as stating that he worked forty hours per week at $19.00 per hour for a weekly total of 

$760.00, and that $15,200 were his total lost wages, at the time he supplemented his Answers. 

 In his response brief, Marcum claimed that his damages were now “set forth in [his] 

demand letter.” The demand letter, dated October 1, 2013, requests lost wages, attorney’s fees, 

and a neutral letter of reference, and is apparently the first such letter the Defendants received.7

 

What is disturbing, however, is the letter’s unsupported assertion that Marcum’s lost wages are 

now $1100.00 per week. The $340 difference from what he listed in his supplemental Answer is 

possibly attributed to Marcum’s new assertion (first appearing in the demand letter) that he 

worked “approximately 5-10 hours of overtime per week,” but because his figures and 

calculations remain unverified and unexplained, the actual reason is unclear. 

Also included in the settlement demand for the first time is Marcum’s demand for 

attorney’s fees. Defendants argue that Marcum waived his demand for attorney’s fees because 

they were not mentioned in prior interrogatory Answers and because Marcum’s counsel has 

stipulated that the only damages he is seeking is lost wages. Marcum contends, however, that he 

did not waive his attorney fees and could not have done so since they are part of the statutory 

relief to which he is entitled. 

Finally, Interrogatory 14 asks Marcum to list his e-mail addresses, telephone number, and 

any social media user identifications since January 2008. In his initial Answer, Marcum did not 

object and simply admitted having several e-mail addresses and a Facebook account, but 

provided no further information. After the Court granted the Motion to Compel, Marcum still 

 

7 Defendants contend that this is the third time Marcum has misled the Court about the existence of a settlement 

demand letter. First, in his Rule 26(a) disclosures, which were belatedly sent on August 21, 2013, Marcum did not 

list a damages amount, and instead stated “Plaintiff’s damages have already been provided to Defendants in a 

settlement demand.” Defendants argue that no such demand was ever sent. Second, at the show cause hearing, 

Marcum initially indicated that a settlement demand had been sent to Defendants. When pressed by the Court and 

Defendants on whether a settlement demand had actually been sent, however, Marcum’s counsel stated that he was 

not sure. 
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refused to provide the information and instead supplemented his Answer with, “I have not posted 

anything regarding my employment or this lawsuit,” a point reiterated in his response brief. 

 This explanation–while wholly inadequate and in violation of the Court’s August 28, 

2013, Order–is also seemingly untrue. In their reply brief, Defendants assert that Marcum posted 

on his Facebook wall a lengthy commentary that appears to refer to his termination and this 

lawsuit. Although the date of the post is not entirely clear, its content suggests it was written 

soon after Marcum’s termination from GPI. 

 At the hearing on the instant motion, Marcum, speaking directly to the Court, stated that 

the Facebook post was not about GPI or any of its employees and did not involve this lawsuit. 

When asked what the Facebook post was actually about then, if not GPI and this lawsuit, 

Marcum stated that that was irrelevant. 

B. APPLICABLE LEGAL STANDARD 

Federal Rule of Civil Procedure 37(b)(2)(A) provides, in part: 

If a party . . . fails to obey an order to provide or permit discovery, including an 

order under Rule . . . 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; [or] 

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

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

power to manage its cases and achieve orderly disposition.” R R v. City of East Chi., Ind., No. 
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2:12-cv-93, 2013 WL 4674815, at *2 (N.D. Ind. Aug. 30, 2013) (citing Chambers v. NASCO, 

Inc., 501 U.S. 32, 44, 47 (1991)). “[A]n award of sanctions must be proportionate to the 

circumstances surrounding the failure to comply with discovery.” Crown Life Ins. Co. v. Craig, 

995 F.2d 1376, 1382 (7th Cir. 1993). In determining the appropriate sanctions, the court 

measures the proposed sanctions against the offending party’s conduct. Barnhill v. United 

States, 11 F.2d 1360, 1368 (7th Cir. 1993). 

The Seventh Circuit has stated that, “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 467-68. 1 “[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.” Id. at 468 (internal citation omitted). 

 These “measures of culpability are each wholly distinct from one another.” Marrocco, 

966 F.2d at 224. 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.” Id. Fault, however, is 

“unconcerned with the non-complying party’s subjective motivation” and instead describes “the 

reasonableness of the conduct—or lack thereof—which eventually culminated in the violation.” 

Langley by Langley v. Union Elec. Co., 107 F.3d 510, 514 (7th Cir. 1997) (citation and internal 

quotation omitted). 

 

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 The Seventh Circuit has also found that dismissal may be used as a sanction “when there is a clear record of delay 

or contumacious conduct, or when other less drastic sanctions have proven unavailing.” Maynard v. Nygren, 332 

F.3d 462, 467 (7th Cir. 2003) (quoting Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998)). 

Sanctions for contumacious conduct are imposed under the Court’s inherent power. Large v. Mobile Tool Int’l, Inc., 

No 1:02cv177, 2008 WL 2116967, at *7 (N.D. Ind. May 20, 2008)(“[W]hen the court uses its inherent power to root 

out contumacious conduct, no showing of willfulness, bad faith, fault, or even prejudice is required”). Because the 

Defendants only argue that Marcum should be sanctioned under Rule 37(b), the Court does not consider whether 

Marcum’s conduct was sanctionable under the contumacious conduct standard. 
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C. ANALYSIS 

 Upon a review of this record, there can be little question that sanctions should be imposed 

under Rule 37(b). 

 After the Court’s August 28, 2013, Order, Marcum’s supplemental Answers to 

Interrogatories 4, 5, 10, 13, and 14 are clearly inadequate. Marcum still has not provided 

medical information under Interrogatory 4, his Answers to 5 and 13 do not provide the contact 

information of the witnesses or what they purportedly knew, he appears to be backtracking on his 

Answer to Interrogatory 10, and the Answer to Interrogatory 14 may constitute a false statement, 

compounded by the statements made directly to the Court at the October 18, 2013, hearing. 

 The issue then is not so much whether sanctions should be imposed, because clearly they 

must be, particularly since there was at a minimum, fault (i.e., a lack of reasonableness); rather, 

the question is whether the sanction should be dismissal. That question is framed by whether 

Marcum has exhibited exceptional misconduct or the type of willfulness, bad faith or fault 

spoken of by the Seventh Circuit. Compare Sun v. Bd. of Trustees, 473 F.3d 799, 811 (7th Cir. 

2007) (finding dismissal an unduly harsh sanction because offending party’s delay in complying 

with court order to answer outstanding interrogatories “was not so extreme as to warrant an entry 

of default”), with Maynard v. Nygren, 372 F.3d 890 (7th Cir. 2004) (affirming sanction of 

dismissal because the offending party had willfully and intentionally withheld evidence from 

opposing party). 

 Yet, dismissal should not be imposed unless the Court finds that a less severe sanction 

would be inappropriate. Maynard, 332 F.3d at 468 (“[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.”). Stated another way, the 
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issue becomes whether less severe sanctions will remedy the damage. See R R, 2013 WL 

4674815, at * 2 (“When assessing dismissal . . . for failure to comply with a court order, the 

court must consider whether . . . less drastic sanctions have been unavailing.”). 

 In that regard, what the Defendants are seeking from Marcum is basic information in a 

FMLA case that should have been supplied months ago: medical information, witnesses, and 

damages. The fact they have not received that information rests entirely on Marcum. Yet, these 

long-standing deficiencies can be rectified through limiting his witnesses and damages, assessing 

attorney’s fees, and staying his discovery until he produces the information sought. 

The disturbing issue, of course, ordinarily would be the request for Marcum’s social 

media information, see generally Higgins v. Koch Dev. Corp., No. 3:11-cv-81, 2013 WL 

3366278 (S.D. Ind. July 5, 2013) (finding that plaintiff’s social media postings were discoverable 

upon threshold relevance showing), but Marcum never objected to the Interrogatory, failed to 

contest the Motion to Compel, did not appear at the hearing where the issue was initially 

considered, and never objected to the Court’s finding of a threshold showing of relevance. And 

whatever can be said about its relevance before, it now clearly appears relevant given the one 

Facebook post displayed to the Court and Marcum’s dubious assertion that it has nothing to do 

with his case. E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 436 (S.D. Ind. 2010) 

(finding plaintiffs’ social media postings discoverable to extent they were reasonably calculated 

to lead to admissible evidence). 

 Given that much more time remains for discovery (a point Marcum continues to 

emphasize), that the deficiencies are easily rectified, and because this is the first time the Court 

has had to consider sanctions against Marcum for not obeying a discovery order under Rule 

37(b)(2)(A), it is recommended that dismissal not be imposed in the face of lesser sanctions that 
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should, along with attorney’s fees, Fed. R. Civ. P. 37(b)(2)(C), repair the damage. Marrocco, 

966 F.2d at 223-24 (explaining that before imposing sanction of dismissal the court must first 

consider whether less severe sanctions will remedy the damage). And because the ultimate 

sanction of dismissal hangs by a thread, it should serve as sufficient motivation to get Marcum, 

and his counsel’s cooperation. 

Accordingly, the following sanctions are proportional to Marcum’s misconduct: (1) 

limiting his potential damages to lost wages along with attorney’s fees,2

 Fed. R. Civ. P. 

37(b)(2)(iii); (2) limiting his witnesses to only Ted Bates, Cherri Marcum, and April Kemp, Fed. 

R. Civ. P. 37(b)(2)(ii); (3) establishing his lost wages per week at $760, Fed. R. Civ. P. 

37(b)(2)(i); (4) ordering payment of one-half of the attorney’s fees previously imposed within 30 

days; (5) staying his discovery until he complies with this Order, Fed. R. Civ. P. 37(b)(2)(iv); 

and (6) that Marcum and his counsel pay Defendants’ fees and costs associated with bringing 

this motion, Fed. R. Civ. P. 37(b)(2)(C). Moreover, Marcum should be warned that in the event 

these or any lesser sanctions are imposed, any further misconduct or failure to comply may 

warrant dismissal of his case. Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993) (“A judge 

is not obliged to treat lawyers like children. But there should be an explicit warning in every 

case”). Finally, since it appears that some supplementation is required, Marcum should 

undertake to immediately supplement his discovery responses and initial disclosures. 

D. CONCLUSION 

For the foregoing reasons, the undersigned Magistrate Judge recommends that the 

Defendants’ motion to dismiss be denied, motion to enforce be granted, and that the following 

 

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 “The plain language of the fee-shifting provision of the FMLA requires the award of attorneys’ fees in cases where 

a violation of the FMLA is established.” Rice v. Sunrise Express, Inc., 237 F. Supp. 2d 962, 968-699 (N.D. Ind. 

2002) (emphasis in original) (finding that attorney’s fees in FMLA actions are separate from an award of damages). 

Because the award of attorney’s fees is required where a FMLA violation is established, and because attorney’s fees 

are separate from an award of damages, Marcum’s counsel could not have inadvertently precluded the recovery of 

attorney’s fees when he stipulated that his client’s damages were limited to lost wages. 
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sanctions be imposed on Marcum: (1) limiting his potential damages to lost wages along with 

attorney’s fees; (2) limiting his witnesses to only Ted Bates, Cherri Marcum, and April Kemp; 

(3) establishing his lost wages per week at $760; (4) ordering payment of one-half of the 

attorney’s fees previously imposed within 30 days; (5) staying his discovery until he complies 

with this Order; and (6) that Marcum and his counsel pay Defendants’ fees and costs associated 

with bringing this motion. NOTICE IS HEREBY GIVEN that within fourteen days after being 

served with a copy of this recommended disposition a party may serve and file specific, written 

objections to the proposed findings or recommendation. 28 U.S.C. § 636(b)(1)(B). FAILURE 

TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO 

APPEAL THE DISTRICT COURT'S ORDER. Lorentzen v. Anderson Pest Control, 64 F.3d 

327, 330 (7th Cir. 1995). 

SO ORDERED.

Entered this 29th day of October, 2013.

/S/ Roger B. Cosbey

Roger B. Cosbey

United States Magistrate Judge