UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

RUSSELL D. ROSCO, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:14-cv-00141-RL-SLC

)

EQUIFAX, )

)

Defendant. )

REPORT AND RECOMMENDATION

Before the Court are several motions for sanctions (DE 34, 53, 62) filed by pro se

Plaintiff Russell Rosco, asserting that Defendant Equifax and its counsel willfully violated the

discovery rules. He seeks a bevy of sanctions against Equifax and its counsel, including

monetary penalties, disbarment of counsel, a judgment in his favor, injunctive relief,

compensatory damages for emotional distress, and punitive damages. 

 The motions were referred to the undersigned Magistrate Judge on September 1, 2015, by

District Judge Rudy Lozano to prepare a report and recommendation. (DE 66). Having

reviewed the record and pursuant to 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 Rosco’s motions

for sanctions be DENIED.

A. Factual and Procedural Background

On April 1, 2014, Rosco filed this action in Allen County Superior Court, Indiana, Small

Claims Division, alleging that Equifax failed to provide him with information in his file upon

request, in violation of § 1681g(a)(1) of the Fair Credit Reporting Act. (DE 13). Equifax
removed the case to this Court. (DE 1). The Court conducted a scheduling conference on

November 24, 2014, setting a discovery deadline of April 17, 2015. (DE 12). 

On December 24, 2014, Rosco served Equifax with his First Set of Interrogatories (DE

17) and First Request for Production of Documents (DE 16), which were received by Equifax on

December 29, 2014. (DE 23 ¶¶ 1-2). Equifax responded to Rosco’s discovery requests on

February 25, 2015. (DE 55-1 ¶ 4). 

On March 12, 2015, Rosco filed a letter addressed to Equifax’s counsel, indicating that it

was his “good faith effort prior to filing a motion for sanctions.” (DE 31). In the letter, Rosco

asserted that Equifax made boilerplate, meaningless objections to his discovery requests seeking

his credit file and “frozen data scans,” and he demanded that Equifax submit such information by

March 26, 2015, or it would face a motion for sanctions. (DE 31 at 1). 

On April 3, 2015, Rosco filed a motion for sanctions against Equifax and its counsel,

reiterating the arguments in his March 12th letter concerning Equifax’s discovery responses. 

(DE 34). He seeks monetary sanctions, disbarment of counsel, a judgment in his favor,

injunctive relief, compensatory damages for emotional distress, and punitive damages. (DE 34). 

On April 20, 2015, Equifax requested an extension of time to respond to Rosco’s motion

for sanctions, which the Court granted. (DE 40; DE 42). The Court then received Rosco’s

objection to the requested extension; not long thereafter, Equifax filed a second request for

extension of time to respond to Rosco’s motion for sanctions. (DE 43; DE 44). On May 11,

2015, the Court held a telephonic hearing on Equifax’s motion for a second extension, affording

Equifax up to and including May 18, 2015, to file a response to Rosco’s motion for sanctions;

the parties also engaged in settlement discussions at the hearing. (DE 46). 

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On May 18, 2015, Equifax filed a motion to stay, contending that the parties had reached

a settlement agreement and that fulfilling the terms of the settlement, which included providing

Rosco with a credit disclosure, would take time to complete. (DE 47). Two days later, Equifax

supplemented its responses to Rosco’s interrogatories. (DE 49). 

On June 11, 2015, Rosco filed a notice stating that Equifax had failed to provide his

credit file and that he had no desire to enter into a settlement agreement. (DE 52). Rosco then

filed a second motion for monetary sanctions, asserting that Equifax should be sanctioned for

failing to provide him documents referred to in Equifax’s supplemental responses to his

interrogatories. (DE 53). 

On June 26, 2015, Equifax filed a motion to enforce settlement, asserting that the parties

had entered into an enforceable settlement agreement on May 14, 2015.1 (DE 54). That same

day, Equifax filed a response to Rosco’s second motion for sanctions. (DE 55). On June 29,

2015, the Court deemed Equifax’s motion to stay moot. (DE 56).

On July 28, 2015, Rosco filed a third motion for sanctions (with 187 pages of exhibits),

reiterating the arguments in his first motion for sanctions and raising numerous additional

purported violations by Equifax that he believes merit sanctions. (DE 62). Equifax responded

on August 13, 2015 (DE 64), and Rosco replied on August 24, 2015 (DE 65). Therefore,

Rosco’s motions for sanctions are ripe for ruling. 

1 The motion to enforce settlement agreement has also been referred by Judge Lozano (DE 63), and the

undersigned Magistrate Judge is issuing a separate report and recommendation on that motion.

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B. Applicable Legal Standard

Federal Rule of Civil Procedure 37(b) provides that “[i]f a party . . . fails to obey an order

to provide or permit discovery, . . . the court where the action is pending may issue further just

orders[, including] . . . rendering a default judgment against the disobedient party . . . .” Fed. R.

Civ. P. 37(b)(2)(A). “The simple failure to comply is enough [to warrant sanctions],

notwithstanding a complete lack of culpability on [the party’s] part.” Halas v. Consumer Servs.,

Inc., 16 F.3d 161, 164 (7th Cir. 1994). That is, “the culpability of a party who fails to comply

with a court order determines only which sanctions the court should impose and not whether any

sanctions are appropriate at all.” Id. (citations omitted). “[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). 

C. Analysis

As explained above, Rule 37(b) authorizes a court to impose sanctions against a party

who fails to obey an order to provide or permit discovery. Here, however, the Court has not

issued a discovery order in Rosco’s favor with which Equifax has failed to comply, as Rosco

filed his motions for sanctions without first filing a motion to compel.2

 Therefore, on this basis

alone, Rosco’s motion for sanctions must be DENIED.3 See, e.g., Morris v. Ley, No. 05-C-0458,

2 To ensure that Rosco’s arguments are given fair consideration, see Palmer v. City of Decatur, Ill., 814

F.2d 426, 428-29 (7th Cir. 1987) (noting the court’s duty “to ensure that the claims of a pro se litigant are given a

fair and meaningful consideration” (internal quotation marks and citations omitted)), and to facilitate clarity of the

record, the Court, via a separate Order, is granting Rosco leave to file a motion to compel with respect to his First

Set of Interrogatories and his First Request for Production of Documents to flesh out any arguments he attempted to

make in his three motions for sanctions. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se

is to be liberally construed . . . .” (internal quotation marks and citation omitted)). 

3 Also, Local Rule 26-2 states that a party who files a motion for relief under Federal Rules of Civil

Procedure 26(c) or 37 must file with the motion those parts of the discovery requests or responses to which the

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2006 WL 2585029, at *3 (E.D. Wis. Sept. 7, 2006) (denying pro se plaintiff’s motion for

sanctions outright because he filed them when his motions to compel were still pending); see

Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow rules

of civil procedure.” (citation omitted)). 

Furthermore, on this record, the purported infractions that Rosco describes do not rise to

the level of sanctionable conduct. In his first motion for sanctions, Rosco asserts that Equifax

should be sanctioned for raising boilerplate objections—such as overly broad, unduly

burdensome, not reasonably calculated to lead to the discovery of admissible evidence, or seeks

confidential information—to his discovery requests. (DE 34 at 5). On this basis, he contends

that the Court should sanction Equifax and its counsel by issuing monetary penalties,

recommending that counsel be disbarred, entering a judgment in Rosco’s favor, assessing

emotional damages and punitive damages in excess of one million dollars, and entering an

injunction requiring Equifax to provide all information in a credit file whenever a consumer

disputes an entry. (DE 34 at 12-17). 

“Of course, legal objections are properly asserted by counsel [when responding to

discovery requests].” Ogden v. Dyco, No. 09-124-WDS, 2009 WL 3273221, at *1 (S.D. Ill. Oct.

9, 2009) (citing Fed. R. Civ. P. 33(b)(5)) (denying pro se plaintiff’s request for sanctions where

defendant responded to his discovery requests with objections). Even if Equifax’s initial

motion pertains. N.D. Ind. L.R. 26-2(b), (c). Although Rosco summarizes his interrogatories and requests for

production and Equifax’s responses, he did not submit the actual discovery requests and responses with his motions

as required by Local Rule 26-2. The Court located in the record Rosco’s discovery requests (DE 16; DE 17), and

Equifax’s supplemental responses (DE 49), but did not find Equifax’s initial discovery responses dated February 25,

2015. The Court reminds the parties that under Local Rule 26-2(a)(2)(A) “[a]ll discovery material in cases involving

a pro se party must be filed.” 

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responses were overly dependent on boilerplate objections,4 see Methodist Health Servs. Corp. v.

OSF Healthcare Sys., No. 13-1054, 2014 WL 1612838, at *2 (C.D. Ill. Apr. 22, 2014) (“The

objecting party must do more than simply recite boilerplate objections such as overbroad,

burdensome, oppressive or irrelevant.” (citations omitted)), on this record, Rosco’s request for

sanctions is wholly “[dis-]proportionate to the circumstances surrounding the failure to comply

with discovery.” Crown Life Ins. Co., 995 F.2d at 1382. In its supplemental answers, Equifax

follows its boilerplate objections with either the requested information or an explanation for the

objection. (DE 49). As such, Equifax does “more than simply recite boilerplate objections such

as overbroad, burdensome, oppressive or irrelevant,” Methodist Health Servs. Corp., 2014 WL

1612838, at *2, rendering sanctions inappropriate. 

 In his second motion for sanctions, Rosco contends that sanctions are warranted because

Equifax referred to several documents in its supplemental answer to Interrogatory No. 7 that

were not provided to him. He points out that in his Request for Production No. 1, he requested a

copy of “any and all documents identified or requested to be identified in response” to his

interrogatories. (DE 16). He then asks that the Court impose monetary sanctions at the rate of

$3,500 per document for Equifax’s failure to produce the documents referred to in its

supplemental interrogatories. Again, Rosco’s argument does not provide a basis for the

imposition of monetary sanctions, because the Court has not, as of yet, ordered Equifax to

produce these additional documents. See, e.g., Pringle v. Garcia, No. 2:09-CV-22-PPS-PRC,

2013 WL 1911484, at *4 (N.D. Ind. May 8, 2013) (denying plaintiff’s request for sanctions as

4 As stated earlier, Equifax’s initial discovery responses do not appear to be in the record. 

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premature). 

In his third motion for sanctions, Rosco argues that sanctions should be imposed based

on a litany of other purported violations by Equifax, including that it has caused extensive delays

in this case, failed to properly respond to his discovery requests, failed to provide documents it

referenced in its supplemental answers to his interrogatories, failed to make initial disclosures,

failed to identify a Rule 30(b)(6) deponent, failed to file discovery responses, failed to file its

response to his first motion for sanctions by the due date, and represented that it had mailed its

supplemental interrogatory answers on a Sunday. (DE 62 at 3-10). He then asks for a list of 25

“general requests for sanction provisions” that he contends are appropriate based on these

purported violations. (DE 62 at 20-24).

Rosco’s third request for sanctions is also unavailing. There is no evidence that Equifax

unreasonably delayed the discovery process in this case, as the few extensions it requested were

not unreasonable in length. Equifax timely served its initial disclosures on December 15, 2014,

and its responses to Rosco’s interrogatories and document requests on February 25, 2015. (DE

64-1 ¶¶ 4, 9). Rosco never served a Rule 30(b)(6) deposition notice on Equifax (DE 64-1 ¶ 10),

and thus, his Rule 30 argument is without basis. As to the rest of the missteps that Rosco alleges

Equifax committed, on this record, they simply do not rise to the level of sanctionable conduct. 

See Mickelson v. Mickelson, No. 11 C 5061, 2013 WL 3774004, at *11 (N.D. Ill. July 18, 2013)

(refusing to assess sanctions based on “bald assertions”). Therefore, the undersigned Magistrate

Judge will recommend that Rosco’s three motions for sanctions be DENIED. 

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D. Conclusion

For the foregoing reasons, the undersigned Magistrate Judge recommends that Rosco’s

three motions for sanctions (DE 34, 53, 62) be DENIED.

The Clerk is directed to send a copy of this Report and Recommendation to the pro se

Plaintiff and to counsel for Defendant. NOTICE IS HEREBY GIVEN that within 14 days after

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

written objections to the proposed findings and/or recommendations. Fed. R. Civ. P. 72(b). 

FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT

TO APPEAL THE DISTRICT COURT’S ORDER. See Brokaw v. Brokaw, 128 F. App’x 527,

530 (7th Cir. 2005); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

SO ORDERED. 

Enter for this 4th day of September 2015.

S/ Susan Collins 

Susan Collins

United States Magistrate Judge 

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