UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

AYANNA FISHER-LOMAX, )

Plaintiff, )

)

v. ) Cause No.: 2:13-cv-218-WCL-PRC

)

KOHL’S DEPARTMENT )

STORES, INC., )

Defendant. )

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 Defendant’s Motion for Sanctions and Dismissal Pursuant

to Fed. R. Civ. Pro. 37(b) and 41(b) [DE 17], filed on February 13, 2014. On March 10, 2014,

District Court Judge William Lee entered an Order [DE 21] 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).

Plaintiff filed her Complaint in Lake County, Indiana, Superior Court on April 9, 2013.

Defendant removed the case to the United States District Court for the Northern District of Indiana

on June 20, 2013. Defendant represents that it served Plaintiff with Interrogatories and Requests for

Production on September 27, 2013. 

Plaintiff did not serve Defendant with responses within the thirty-day window provided for

by Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2)(A). Defense counsel then contacted

Plaintiff’s attorney, and the parties agreed to extend the deadline by seven days for Plaintiff to serve

her responses. This new deadline passed without Plaintiff taking any action. On December 13, 2013,

Defendant filed a Motion to Compel. Plaintiff did not respond to this motion, but she did serve
Defendant with responses to the discovery requests on December 27, 2013. The parties did not

notify the Court of this development, and the Court, noting that Plaintiff had not filed a response

brief, granted the Motion to Compel on January 8, 2014, ordering Plaintiff to respond to Defendant’s

written discovery requests. Unsatisfied with the responses it received, Defendant then filed this

motion, which requests sanctions against Plaintiff under Federal Rules of Civil Procedure 37(b) and

41(b), contending that Plaintiff failed to comply with this Court’s Order on the Motion to Compel.

The procedural posture of this case presents a problem for Defendant’s motion, however.

Sanctions under both Federal Rules of Civil Procedure 37(b) and 41(b) are only available when a

party has failed to obey a Court’s order. But Plaintiff served her responses before this Court’s Order

on the Motion to Compel. One cannot violate an Order before it is issued, and the Court hence

FINDS that this matter is not properly before the Court and RECOMMENDS that Judge Lee deny

the motion. If Defendant desires more complete answers to its written discovery, the proper remedy

would be for it to file a Motion to Compel. 

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, 260–61 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n.2 (7th Cir.

1988). 

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SO ORDERED this 15th day of May, 2014. 

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record 

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