Plaintiff's amended motion was denied, and Plaintiff was ordered to appear at the courthouse at
11:00 am. for his deposition. Plaintiff failed to appear at 11:00 a.m. No such medical opinion has
been provided by Plaintiff.
ANALYSIS

Defendant seeks to have Plaintiff's case dismissed pursuant to Federal Rule of Civil
Procedure 41(b) or 37(b)(2) for Plaintiff's failure to comply with the Court’s November 19, 2003
Order.

Federal Rule of Civil Procedure 41(b) provides, in pertinent part: “For failure of the plaintiff
... to comply with these rules or any order of court, a defendant may move for dismissal of an action
or of any claim against the defendant.” Dismissal pursuant to Rule 41(b) is appropriate if there is
a clear record of delay or contumacious conduct or when other less drastic sanctions have been
proven unavailing. See Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (Maynard).
Dismissal is a harsh sanction that should be imposed infrequently; and the court can, within its
discretion, impose a less severe sanction. See Roland v. Salem Contract Carriers, Inc., 811 F.2d
1175, 1178-79 (7th Cir. 1987).

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

If a party ... fails to obey an order to provide or permit discove-y ...

the court in which the action is pending may make such orde:s in
regard to the failure as are just, and among others the following:

eek

(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof.

ak



Plaintiff's previous motions for a protective order were denied because ‘he inconclusive and
mostly stale statements by Plaintiff's physician failed to demonstrate that Plaintiff was unable to
appear at the courthouse for his deposition. Plaintiffs counsel’s sanctionable misconduct at
previous depositions of the Plaintiff warrants court supervision of this depositio. Plaintiffhas failed
to demonstrate that the Court’s previous Orders contained manifest errors of law or fact, and he has
failed to present newly discovered evidence or an intervening change in the law.

Defendant has also provided the Court with photographs and the a‘fidavit of a private
investigator, hired by the Defendant, as evidence that Plaintiff drove an autom bile from his home
approximately 2.5 miles to a grocery store on December 22, 2003. This occurred a few days after
Plaintiff’s counsel represented to the Court that Plaintiff was unable to trave.. The photographs
include Plaintiff's walking without assistance into a grocery store, out of the grocery, and loading
groceries into his car. In response to these photographs and affidavit, Plaintiff avers that he was the
only one in his household that could travel to the grocery store for necessities aad that he needed to
take pain pills in order to go to the store and took several days to recuperate from the trip to the
grocery store.

Based on all of the above, Plaintiff's Motion for Reconsideration is denied. Plaintiff is

ordered to complete his deposition downtown at the courthouse, where the deposition may be

supervised by the Court, within fourteen days hereof.



.. do not hesitate to page me ... should you have questions.” There was no representations regarding
Plaintif's ability to travel. The Court attempted to contact the doctor at the phone number provided
by the Plaintiff without success. The doctor did not return the Court’s call at the Court’s phone
number that was left on the doctor’s answering machine.

Plaintiff's Emergency Motion for a Protective Order and to Reconsider was denied. The
Court found that the motion on its face failed to state grounds for relief from the Court’s previous
Order. The only medical note that included a statement that Plaintiff could not travel downtown was
from June 2003 and merely stated, ina conclusory manner, that Plaintiff could not travel downtown.
The Court sought a current, competent medical opinion that Plaintiff could not come to downtown
Chicago. Plaintiff was ordered to appear for his deposition at 1:00 p.m. that same day. Plaintiff
failed to appear at 1:00 p.m.

On December 4, 2003, a status hearing was held; and Defendant filed an Amended
Emergency Motion for a Protective Order and to Reconsider the Court’s December 2 and 3, 2003
Orders. The Court again found that the motion did not state grounds for Plaintiff's failure to appear
because it contained the same stale and ambiguous doctors’ notes from the previous motion. The
doctor whom the Court called the previous day had not retuned the call as Tequested. When
questioned how Plaintiff planned on appearing downtown for the upcoming trial, Plaintiff's counsel
stated that Plaintiff planned on taking a limousine. The Court noted that Plaintif¥’ could use the same
mode of transportation to have his deposition taken downtown. Plaintiff's counsel also submitted
Plaintiff's affidavit in which Plaintiff averred that he could not travel downtown. The Court
reiterated that Plaintiff's counsel was to provide a current competent medical statement as to why

Plaintiff could not appear at the courthouse, not Plaintiff's personal beliefas to his inability to travel.


Th lieu of any of the foregoing orders or in addition thereto, the court
shall require the party failing to obey the order or the attorney
. advising that party or both to pay the reasonable expenses, including
attorney’s fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.
A Rule 37(b)(2) dismissal requires a showing by clear and convincing evidence of willfulness, bad
faith or fault on the part of the noncomplying party. See Maynard, 332 F.3d at 467-68.

Defendant argues that dismissal is proper because the Plaintiff failed to comply with this
Court’s November 19, 2003 Order by failing to proceed with his deposition after approximately two
hours, after claiming that his medical condition prevented him from continuing.

Plaintiff did appear for his deposition as ordered on November 19, 2003. The Plaintiff was
unable to complete his deposition in the six-hour time frame orally ordered by “he Court because of
his alleged medical condition. However, the written order of November 19, 20(3, mistakenly stated
that Defendant was “given an additional two hours to take Plaintiffs deposition if such time is
deemed necessary by the Defendant.” In light of the conflicting Orders, the Plaintiff's termination
of the deposition after two hours cannot be said to be clear and convincing evidence of fault by
Plaintiff. Dismissal pursuant to either Rule 41(b) or 37(b)(2) is, there“ore, inappropriate.
Defendant’s motion for attorney’s fees for Plaintiff's failure to comply with the November 19, 2003

Order is denied for the same reason. Accordingly, Defendant’s Motion for Involuntary Dismissal

and for Sanctions is denied.'!

‘In its reply brief, Defendant includes argument pertaining to Plaintiff’: failure to comply
with the Court’s December 2003 Orders. However, Plaintiff's conduct in December 2003 was
not the basis of Defendant’s motion which was filed on November 26, 2003. Accordingly,
Plaintiff’s conduct in December 2003 is not relevant to Defendant’s motion presently before the
Court.


CONCLUSION

’

“ For the reasons stated above, Defendant’s Motion for Involuntary Dismissal and for
Sanctions is denied. Plaintiffs Third Emergency Motion for a Protective Order is denied. Plaintiff's
Motion to Reconsider is denied. Plaintiff will submit to a deposition at the courthouse (219 South

Dearborn, Chicago, Illinois) within fourteen days hereof.

Dated: 71,2004 VA arte

Cross W. DARRAH
United States District Judge



Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 03 C 641 DATE 2/11/2004
CASE Franzen vs. Ellis
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
ql) oa Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
@) o Answer brief to motion due . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ia) Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO Trial{set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) QLocal Rule 41.1 CFRCP41(a)(i) OO FRCP41(a)(2).
ao [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
defendant’s motion for involuntary dismissal and for sanctions is denied. Plaintiffs third emergency
motion for a protective order is denied. Plaintiff's motion to reconsider is denied. Plaintiff will submit
to a deposition at the courthouse (219 S. Dearborn, Chicago, Illinois) within fourteen days hereof. Enter
Memorandum Opinion and Order.
(jl) @ [For further detail see order attached to the original minute order.]
‘No notices required, advised in open court. A
2
No notices required. une of
a | Notices mailed by judge's staff. FFB 1 2 wag
Notified counsel by telephone. date docke of
Docketing to mail notices.
Mail AO 450 form. -
Copy to judge/magistrate judge.
2/11/2004
oo pod date mailed n xice
MF deputy’s . MP
initials ; ———
GE Un- C= datetime received in 7
central Clerk's Office mailing deputy sitiate



Plaintiff seeks to have a protective order entered allowing Plaintiff to have his deposition
taken in a Far Western Suburb of Chicago on an acceptable date and to limit the deposition to one
to two hours. In support of his request, Plaintiff relies upon the previously discussed physician
statements, his own affidavit in which he avers he cannot travel downtown and that he cannot sit for
more than one or two hours because of his medical condition, and the affidavit of an individual who
currently resides with the Plaintiff who also avers that Plaintiff cannot travel downtown or sit for an
extended period of time. However, Plaintiff has not provided the Court with current, competent
medical evidence that Plaintiff is unable to travel to downtown Chicago; arid the Court has not
Teceived a retum phone call from Plaintiff's doctor as requested more than two months ago.
Accordingly, Plaintiff's Third Emergency Motion for a Protective Order is denied.

Lastly, Plaintiff seeks reconsideration of the Court’s December 2, 3, and 4, 2003 Orders.

Motions for reconsideration serve a limited function of correcting man_fest errors of law or
fact or presenting newly discovered evidence or an intervening change in the law. Cosgrove v.
Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). Reconsideration is appropriate when “the Court has
patently misunderstood a party or has made a decision outside the adversarial issues presented to the
Court by the parties or has made an error not of reasoning but of apprehension.” Spearman Indus.,
Inc. v. St. Paul Fire & Marine Ins. Co., 139 F. Supp. 2d 943, 945 (N.D. Til. 20C1), quoting Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A motion for
reconsideration cannot be used to introduce new legal theories for the first time, to raise legal
arguments that could have been heard during the pendency of the previous motion, or to present

evidence that could have been adduced during the pendency of the original moticn. Publishers Res.,

Inc. vy. Walker-Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985).



UNITED STATES DISTRICT COURT

. NORTHERN DISTRICT OF ILLINOIS
. EASTERN DIVISION
RICHARD FRANZEN, )
)
Plaintiff, )
) No. 03 C 0641
v. )
) Judge John W. Darrah
ELLIS CORPORATION, )
)
Defendant. )
MO: PINT

Presently pending before the Court is Defendant’s Motion for Involuntary Dismissal and
Sanctions and Plaintiff's Third Emergency Motion for a Protective Order and Motion to Reconsider.
BACKGROUND

On September 19 and 22, 2003, defense counsel took Plaintiff's depositions. Each deposition.
lasted approximately three hours.

On October 1, 2003, Defendant filed a Motion for Sanctions based on }?laintiff’s counsel’s
behavior at the September 2003 depositions. This conduct included Plaintiff's counsel’s making
over 200 objections in less than a six-hour time frame during defense counsel’s questioning of
Plaintiff, repeatedly coaching the witness during the deposition, and making unp:ofessional remarks
to defense counsel.

On November 19, 2003, the Court granted the Motion for Sanctions, finding that Plaintiff's
counsel’s conduct was sanctionable. The Court also ordered all depositions involving Plaintiff's
counsel be conducted at the courthouse. Plaintiff’s counsel originally agreed but later orally moved
that Plaintiff's deposition be taken elsewhere because Plaintiff had difficulty traveling. The Court

granted this motion and ordered Plaintiff to be deposed within seven days at a location near

Sa


Plaintiff's residence. Further, the Court ordered orally that the deposition could be up to six hours.
On November 25, 2003, Plaintiff's deposition resumed. The deposition lasted approximately two
hours because Plaintiff's counsel terminated the deposition because the Plaintiff was in too much
pain to continue the deposition.

On November 26, 2003, Defendant filed the instant motion for involuntary dismissal and
sanctions based on Plaintiff's early termination of the November 25, 2003 deposition. On
December 2, 2003, a briefing schedule was ordered. The Court also ordered ‘that Plaintiff was to

|
appear for his deposition on December 3, 2003, at 9:00 a.m. and that the deposition would take place
in the courthouse.

On December 3, 2003, Plaintiff failed to appear for his deposition at 9:00 a.m. Instead,
Plaintiff filed an Emergency Motion for a Protective Order and sought reconsideration of the Court’s
December 2, 2003 ruling. In his emergency motion, Plaintiff argued that he was unable to travel to
Chicago for his deposition and that he was unable to sit for an extended period of time for his
deposition because of his physical condition, including a broken spine and incoaatinence. In support
of his emergency motion, Plaintiff provided: (1) a June 10, 2003 note from his physician that stated
that Plaintiff “couldn’t travel to downtown [due] to his back problem”; (2) an August 8, 2003 note
from his physician stating, “Limit time for deposition to | hour or as needed by back pain”; (3) an
August 10, 2003 note from his physician stating that Plaintiff “has increasing pain when he sits for
more than 2 hours”; (4) an August 11, 2003 note from his physician stating that Plaintiff “can sit for
1-2 hours at one time max”; and (5) a December 2, 2003 letter from Plaintiff's physician stating that
Plaintiff had a broken spine and that Plaintiff experiences severe disabling pain if he sits for longer

than two hours and to “[p]lease make modifications as appropriate to meet the needs of his disability