UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

BENNIE CROSSLEY, )

Plaintiff, )

)

v. ) Cause No. 2:13-cv-172-RL-PRC

)

CITY OF HAMMOND, et al., )

Defendants. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on a Motion for Sanctions [DE 17], filed by Defendants on

February 3, 2014. Plaintiff has not filed a response, and the time to do so has passed. On February

4, 2014, District Court Judge Rudy Lozano entered an Order [DE 19] referring this matter to the

undersigned Magistrate Judge for a report and recommendation on this motion pursuant to 28 U.S.C.

§ 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge’s combined proposed

findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the

Court recommends that the District Court grant the motion and dismiss Plaintiff’s complaint with

prejudice.

I. Background

Plaintiff filed this lawsuit on April 9, 2013, in Lake County, Indiana, state court, alleging

battery and liability under 42 U.S.C. § 1983 for injuries he allegedly sustained while being booked

at the Hammond City Jail. Defendants removed this case to the United States District Court for the

Northern District of Indiana on May 23, 2013. On August 22, 2013, this Court held a scheduling

conference, setting December 31, 2013, as the deadline for completion of fact discovery and for

Plaintiff’s expert witness disclosures and reports. At that conference Plaintiff’s counsel admitted that
he had not served Defendants with the required Federal Rule of Civil Procedure 26 initial

disclosures. The Court ordered him to serve Defendants with those disclosures by September 5,

2013.

Defendants represent that Plaintiff has neither served them with these disclosures nor

responded to interrogatories and requests for production of documents served during the discovery

period. This, Defendants represent, forced the cancellation of Plaintiff’s deposition, which was

scheduled to take place in September. 

To remedy this, Defendants filed a Motion to Compel Discovery on October 16, 2014, which

this Court granted on November 14, 2014, after Plaintiff failed to respond. Defendants filed an

Affidavit for Fees on November 27, 2013, seeking attorney fees for the work done in preparing the

Motion to Compel. Plaintiff again did not respond, and this Court awarded the Defendants $846.00

in attorney fees on January 27, 2014. 

Defendants represent that Plaintiff has neither paid the attorney fees nor obeyed the order,

leading them to file this Motion for Sanctions on February 3, 2014, which District Judge Rudy

Lozano referred to the undersigned Magistrate Judge on February 4, 2014. Plaintiff again did not

respond. 

On April 2, 2014, The Court issued a notice setting the matter for a motion hearing on April

16, 2014, giving counsel of record, including Plaintiff’s attorney, Eduardo Fontanez, electronic

notice of the date and time of the hearing. The hearing was held on the scheduled date. Defendants

appeared by attorney John McCrum. Plaintiff failed to appear either in person or by counsel and did

not contact the Court to explain his absence. At the hearing, defense counsel explained that, as of

April 16, 2014, Plaintiff still had not produced Rule 26 initial disclosures, had not responded to

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Defendants’ discovery requests, had not complied with the Court’s Order on the Motion to Compel,

and had not paid the attorney fees he owes to Defendants. In light of all these failures, Defendants

ask for sanctions against Plaintiff; specifically, they ask that this case be dismissed with prejudice

under Federal Rule of Civil Procedure 37.

II. Analysis

Defendants seek dismissal on two related grounds: Federal Rule of Civil Procedure 37

(b)(2)(A), which provides that Courts may issue sanctions (including dismissal) against parties for

failing to comply with a discovery order, and Rule 37(d), which allows for sanctions against parties

that fail to serve answers to interrogatories. Rule 37(d), however, also requires that parties seeking

sanctions must provide a certification “that the movant has in good faith conferred or attempted to

confer with the party failing to act in an effort to obtain the answer or response without court

action.” Fed. R. Civ. P. 37(d)(1)(B). Defendants did not provide such a certification, so the

undersigned accordingly recommends that Judge Lozano disregard that portion of the motion. 

This leaves Defendants’ contention that Rule 37(b)(2)(A) supports dismissal of this case. The

standard for dismissal under Rule 37(b)(2)(A) is a finding by the court of “willfulness, bad faith or

fault” by clear and convincing evidence. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003)

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

F.3d 510, 514 (7th Cir. 1997); In re Rimsat, Ltd., 212 F.3d 1039, 1046 (7th Cir. 2000)); but see

Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623, 625 (7th

Cir. 2008) (speculating that Maynard might be wrong in requiring a heightened burden of proof).

Default judgment is a drastic sanction. Rice v. City of Chicago, 333 F.3d 780, 785–6 (7th Cir.

2003). This circuit “has a well established policy favoring a trial on the merits over a default

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judgment.” Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007). Indeed, it is an

“extreme sanction that should be used only as a last resort.” Robinson v. Champaign Unit 4 Sch.

Dist., 412 F. App’x 873, 877 (7th Cir. 2011). 

As Judge Lozano explained in Sayles v. Indiana Dep’t of Corr., courts look “to six factors

in evaluating whether dismissal for failure to cooperate with discovery is warranted.” 3:11-CV-427,

2013 WL 2403464 (N.D. Ind. May 31, 2013). These are:

(1) the extent of the party’s personal responsibility; 

(2) the prejudice to the adversary caused by the failure to respond to

discovery; 

(3) a history of dilatoriness; 

(4) whether the conduct of the party was willful or in bad faith; 

(5) the effectiveness of sanctions other than dismissal; and 

(6) the meritoriousness of the claim or defense. 

Id. (citing Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)). The Court

balances these factors, and there is no requirement that each of them must support the motion for

sanctions. Id. “Because dismissal for failure to prosecute involves a factual inquiry, dismissal can

be appropriate even if some of the Poulis factors are not satisfied.” Id. (citing Krieger v. Russell, 286

F.R.D. 261, 262 (D. Del. 2012)).

The Court considers each factor in turn. First, it is unclear to what extent the responsibility

for Plaintiff’s abdication lies with Plaintiff personally or with his lawyer, Eduardo Fontanez.

Accordingly, this factor does not weigh in favor of dismissal. 

Second, there is some prejudice to Defendants as a result of Plaintiff’s actions. Though the

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merits of Defendants’ case remain as strong (or as weak) as before, they are prejudiced by being

stuck in a litigational limbo, which they are powerless to escape from short of having the case

dismissed. So long as Plaintiff refuses to engage in discovery and motion practice, Defendants

cannot mount an informed and proper defense. This factor thus weighs in favor of dismissal.

Third, and most significantly, the history of dilatoriness is profound. In fact, it’s not quite

accurate to call it dilatory; rather, it is a complete abandonment. As detailed above, Plaintiff has not

done anything in this case since August 2013, nearly eight months ago. This abandonment makes

it impossible for the case to go forward and weighs strongly in favor of dismissal with prejudice.

Fourth, while there is no evidence of active willfulness of bad faith, this is because there is

no evidence of active anything on Plaintiff’s part. The Court construes Plaintiff’s refusal to obey

Court orders as willful neglect, which weighs in favor of dismissal with prejudice.

Fifth, as evidenced amply above, all prior sanctions and attempts to get Plaintiff to

participate in this lawsuit have been utterly inefficacious. Plaintiff has completely failed to comply

with this Court’s prior orders (both the order to compel and the related order that Plaintiff pay

attorney fees to Defendants). The complete lack of responsiveness to lesser sanctions militates

against allowing the case to continue. 

Sixth, the real strength of Plaintiff’s claim is difficult to know because this case remains

stuck in its procedural infancy despite being over a year old. Virtually no discovery has taken place,

not even Plaintiff’s initial disclosures. Though this factor thus sheds little light on whether dismissal

is appropriate, insofar as it signifies anything, Plaintiff’s failures to cooperate suggest that his case

is weak. 

Taken in concert, these factors justify dismissal with prejudice. Plaintiff’s drastic failures

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justify use of a drastic sanction. There is nothing in the record to suggest that lesser sanctions would

spur Plaintiff into compliance. If the case cannot be moved forward, it needs to end.

III. Conclusion

In light of these reasons, the Court RECOMMENDS that Judge Lozano dismiss this case

with prejudice. This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C).

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen days after being served with a copy

of this Recommendation to file written objections thereto with the Clerk of Court. The failure to file

a timely objection will result in waiver of the right to challenge this Recommendation before either

the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir.

1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v. Manor Steel

Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n.2 (7th Cir.

1988). 

SO ORDERED this 17th day of April, 2014.

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record 

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