Se

why Plaintiff could not appear at the courthouse, not Plaintiff's personal belief as to his inability to
travel. Plaintiff's amended motion was denied, and Plaintiff was ordered to appear at the courthouse
at 11:00 a.m. for his deposition. Plaintiff failed to appear. Plaintiff filed his Third Verified
Emergency Motion for a Protective Order and Motion to Reconsider the Court’s December 2nd, 3rd,
and 4th Orders.

On February 11, 2003, the Court denied Defendant’s Motion for Involuntary Dismissal and
Sanctions in light of conflicting orders regarding the length of time of Plaintiff's November 25, 2003
deposition. Plaintiff's Third Verified Emergency Motion for a Protective Order and Motion to
Reconsider the Court’s December 2nd, 3rd, and 4th Orders were also denied because the Plaintiff
failed to present current, competent medical evidence that he was unable to travel downtown.
Plaintiff was ordered to be produced for his deposition at the courthouse within fourteen days.

On February 12, 2004, Defendant attempted to set Plaintiff's deposition for
February 24, 2004. On February 18, 2004, Defendant received a letter from Plaintiff's counsel
stating that he was unavailable on February 24, 2004, because of a prior deposition commitment.
Plaintiff's counsel did not provide any alternative dates.

On February 19, 2004, defense counsel left a voice mail message for Plaintiff's counsel
asking about taking Plaintiff's deposition on other dates. Defense counsel also attempted to hand
deliver a letter with the same inquiry. Plaintiff's counsel refused to accept the hand-delivered letter.
On February 20, 2004, Defendant’s counsel received a letter from Plaintiff's counsel, informing her
that Plaintiff planned on filing a writ of mandamus in the Seventh Circuit Court of Appeals the

following week, seeking reversal of this Court’s February 11, 2004 order.



eee

(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.

eee
In 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. Rule 37 does
not authorize dismissal if the noncomplying party establishes that his failure to comply was due to
inability to comply, and not bad faith, or any fault of the noncomplying party. See Societe
Internationale Pour Participations Industrielles Et Commerciales v. Rogers, 357 U.S. 197, 212
(1958).

Defendant argues that dismissal is proper because the Plaintiff has failed to comply with this
Court’s Orders requiring his deposition. Plaintiff first argues that dismissal pursuant to Rule 41(b)
is not appropriate for the alleged failure to comply with the Court Orders. However, dismissal
pursuant to Rule 41(b) and/or Rule 37(b) may be appropriate if the party has failed to comply with
multiple orders and has shown a pattern of delay, noncooperation and disobedience. See Roland v.
Salem Contract Carriers, Inc., 911 F.2d 1175, 1179 n.4 (7th Cir. 1987).

Plaintiff also argues that dismissal is improper because he was unable to comply with the

Court’s Orders because of his disability and inability to travel. Plaintiff provides a letter from his

physician, dated March 12, 2004, in which his physician states that Plaintiff is unable to sit for longer


deposition, the parties requested to speak to the Court because the Plaintiff did not think he could
continue with the deposition.

While speaking with the Court, the parties determined that the Plaintiff could lie on a “sofa”
to continue with the deposition. In addition, Defendant’s counsel stated that she believed that
Plaintiff's counsel was making inappropriate objections. The Court reminded counsel that discovery
depositions were broader and intended to elicit more material than would be otherwise admissible
pursuant to the Federal Rules of Evidence.

The Court was requested a second time later in the deposition. Plaintiff stated that he was
attempting to answer defense counsel’s questions, but defense counsel was getting frustrated that he
could not answer the questions. Defense counsel indicated that the problem was that she would ask
a question, Plaintiff's counsel would state multiple objections, Plaintiff would forget the question,
the question would be re-read, and Plaintiff's counsel would repeat his objections. The Court
instructed Plaintiff's counsel that he need not repeat his objections.

Plaintiff's counsel continued making numerous and repeated objections throughout the
deposition. When defense counsel sought the Court’s assistance a third time, the Court was
conducting a hearing in another matter.

On May 14, 2004, Defendant filed its Third Motion for Involuntary Dismissal based on
Plaintiff's counsel’s alleged violation of the Court’s November 19, 2003 Order, directing Plaintiff's
counsel to refrain from the previously sanctionable conduct at future depositions. On June 7, 2003,
Defendant filed its Motion for a Rule to Show Cause based on Plaintiff's failure to pay the $8,569.50

in fees and costs that the Court awarded Defendant in its February 11, 2004 Order.



On February 23, 2004, defense counsel left another voice mai] message expressing
Defendant’s assumption that Plaintiff did not plan to comply with the Court’s February 11 order and
asking Plaintiff’s counsel to contact defense counsel if that was not the case. That same day,
Plaintiff filed his writ of mandamus in the Seventh Circuit Court of Appeals.

On February 25, 2004, Defendant filed the instant motion for involuntary dismissal. On
March 2, 2004, Plaintiff filed an Emergency Motion to Abstain or Stay in light of the pending writ
of mandamus. On March 17, 2004, Plaintiff filed his Verified Motion to Extend Time to Comply
with the Court’s February 11, 2004 Order.

On March 19, 2004, the Seventh Circuit Court of Appeals denied Plaintiff's writ of
mandamus. On March 24, 2004, the Court denied Plaintiff's Verified Motion to Extend Time to
Comply with the Court’s February 11, 2004 Order because the motion failed to indicate how much
time was requested to comply with the Court’s order. The Court gave Plaintiff leave to refile the
motion as long as it included a requested time period to comply with the order. On March 30, 2004,
Plaintiff filed his Amended Motion for Alternative Deposition Methods or to Extend Time to
Comply with the February 11, 2004 order. On April 16, 2004, the Court granted Plaintiff's
Amended Motion, ordering Plaintiff's deposition to be concluded on or before April 23, 2004.

Plaintiff's fourth deposition took place on April 22, 2004, in a witness room near the
courtroom, The transcript of the depositions demonstrates that within minutes of the start of the
deposition Plaintiff's counsel began the first of over 380 objections to Defendant’s counsel’s
questions. In addition, Plaintiff's counsel began coaching Plaintiff through objections and

statements he made prior to the Plaintiff's answering the question. Approximately one hour into the


evidence that could have been adduced during the pendency of the original motion. Publishers Res.,
Inc. vy. Walker-Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985).

In his Motion to Reconsider, Plaintiff repeats essentially the same arguments already
addressed by the Court in its previous Orders. Accordingly, the Motion to Reconsider is denied.

Defendant’s motions for involuntary dismissal seek to have Plaintiffs case dismissed
pursuant to Federal Rules of Civil Procedure 41(b) or 37(b)(2) for Plaintiff's failure to comply with
the Court’s December 2003 Orders and the February 11, 2004 Order. Both motions are based on
Plaintiff's failure to comply with the Court’s Orders in relation to Plaintiffs deposition. As such,
the Third Motion for Involuntary Dismissal is interpreted as an amended motion to the Second
Motion for Involuntary Dismissal; and the Second Motion for Involuntary Dismissal is denied as
Moot.

Federal Rule of Civil Procedure 41(b) provides, in pertinent part: “For failure of the plaintiff
... to comply with these mules 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:

Ifa party ... fails to obey an order to provide or permit discovery ...

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



Q
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 03 C 641 DATE 9/13/2004
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) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) Oo 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) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(@) Oo Trial[set for/re-set for} on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 CFRCP4i(a)(1) OFRCP41(a)(2).
ao) =f [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
plaintiff's motion to reconsider is denied. Defendant’s second motion for involuntary dismissal is denied
as moot. Defendant’s third [amended ] motion for involuntary dismissal is denied. Enter Memorandum
Opinion and Order.
ab a [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court, Document
No notices required. Numb
number of novices LE
Notices mailed by judge's staff.
Notified counsel by telephone. SEP ms .) L004
o | Docketing to mail notices.
Mail AO 450 form. fa I$ asf bas aw
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Copy to judge/magistrate judge. Aynes 334
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courtroom es) Wa y\ Aas date mailed notice
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also clearly shows that many of the numerous and repeated objections were improper and that some
of the objections were made in an attempt to coach the witness.

In addition to disregarding the Court’s Orders as to Plaintiff's depositions, Defendant also
learned at the April 22, 2004 deposition that Plaintiff failed to produce numerous documents relating
to his medical bills. While discovery was open, Plaintiff disclosed thirty-nine pages of responsive
documents. However, during his deposition, Plaintiff testified that he had “a box that can fill this
[witness] room” of doctors’ bills.

Based on the above repeated disregard for the Court’s Orders and the resulting inability for
Defendant to obtain necessary information to its defense, sanctions against the Plaintiff are
warranted. However, at this stage, dismissal with prejudice is not warranted. Plaintiff's last
appearance for deposition occurred months after it was originally ordered, and Plaintiff’s counsel’s
disregard of the Court’s Orders and inappropriate conduct during the depositions has effectively
deprived the Defendant from discovering information crucial to its defense despite Defendant’s
persistent and extensive efforts to do so. Accordingly, the less severe sanction of prohibiting the
Plaintiff from testifying at trial is appropriate. See Equal Employment Opportunity Comm'n v.
Kenosha Unified School Dist. No. 1, 620 F.2d 1220, 1226 (7th Cir. 1980) (precluding testimony is
a permissible sanction for a party’s failure to comply with court orders). Accordingly, Defendant’s

Third [Amended] Motion for Involuntary Dismissal is denied.

ll



i
than two hours because of significant pain due to injuries Plaintiff sustained in an April 2003 motor
|
vehicle accident. However, as with previous medical notes, the note only states that Plaintiff cannot
sit for more than two hours. Plaintiff again fails to present competent medical evidence that he was
t

unable ta travel downtown and unable to comply with the Court’s Orders.

. Plaintiff has repeatedly failed to comply with the Court’s Orders regarding his deposition.
Moreover, Plaintiff has filed several motions asking the Court to reconsider those orders. These
motions were denied because Plaintiff failed to present competent medical evidence to support bis
assertion that he was physically unable to comply with these orders. Plaintiffhas not established that
he was unable to comply with the Court’s Orders and that such noncompliance was not willful.
Fuh ‘aa Plaintiff's motion to extend the time to comply with the Court’s February 11 Order was
st filed until after the time to comply with the order had expired.

| i
i ‘Defendant also argues that Plaintiff also failed to comply with the Court’s Orders regarding

Plain’ deposition by engaging in the same conduct during the deposition that Plaintiff's counsel

was ordered to refrain from in future depositions. This repeated conduct prohibited Defendant from

cing information crucial to its defense.

: | ; In Tesponse to the most recent motion to dismiss, Plaintiff first argues that the Defendant
waived any objections by failing to have the Court rule on each of Plaintiff's objections while the
deposition took place in the court. Plaintiff's waiver argument lacks merit as Defendant did engage
te po conceming Plaintiff's counsel’s conduct during the April 22, 2004 deposition.

' Plaintiff also argues that he did not coach his client and that his objections were proper.

However, a review of the deposition transcript clearly demonstrates that Plaintiffs counsel’s
hoy

excessive objections delayed and frustrated the Plaintiff's deposition. The review of the transcripts
fly

10


On July 19, 2004, Plaintiff filed his Motion to Reconsider, requesting reconsideration of the
Court’s November 19, 2003 and February 11, 2004 Orders.
ANALYSIS
Relevant to the Court’s analysis of Defendant’s motions to dismiss is Plaintiff's Motion to

Reconsider. Accordingly, this motion is address first.
ml

Plaintiff seeks reconsideration of the Court's November 19, 2003 Order, that granted

Defendant’s Motion for Sanctions, and February 2004 Order, that denied Plaintiff's Motion to
Reconsider the Court’s December 2nd, 3rd, and 4th Orders.

First, Plaintiff's Motion to Reconsider is untimely. Plaintiff seeks reconsideration of Court
Orders of several months ago. A motion to reconsider filed several months after the Court’s orders
and after multiple other issues have been presented by the parties and addressed by the Court is
untimely.

Second, Plaintiff's Motion to Reconsider lacks merit.

Motions for reconsideration serve a limited function of correcting manifest 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. Ill. 2001), quoting Bank of
Waunakee y. 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



' et

| than sto hours and to!"

.. do ‘not hesitate t

“se ing, Plaintiff's

: Court reiter

“numb t Pied by;

at

re Order and Motion to Reconsider the Court’

i
\{p}iease make modifications as appropriate to meet the needs of his disability
a

‘page me ... should you have questions.” There were no representations

jnability to travel. The Court attempted to contact the doctor at the phone

b Plaintiff, without success. The doctor did not return the Court’s call at the

that was left on the doctor’s answering machine.

tgency Motion for a Protective Order and to Reconsider was denied. The

otion on its face failed to state grounds for relief from the Court’s previous

ical note that included a statement that Plaintiff could not travel from June

Sg

ed, inaconclusory manner, that Plaintiff could not travel downtown. The Court

pinion that Plaintiff was unable to travel to downtown

ent, competent medical 0}

gen cy ‘motion was denied, and Plaintiff was ordered to appear for his deposition

e day. Plaintiff failed to appear at 1:00 p.m.

|
4, 7003, astatus hearing was held; and Plaintiff filed an Amended Emergency

's December 2 and
Orders. The Court again found that the motion did not state grounds for

appear because it contained the same stale and ambiguous doctors’ notes from

d the previous day had not returned the

stated that Plaintiff intended to use a

iff’s affidavit in which Plaintiff averre

that Paint’ counsel was to provide a current competent

1. a doctor whom the Court telephone

en questioned how Plaintiff planned on attending the upcoming trial,

limousine. The Court noted that Plaintiff

se mode of transportation to attend his deposition. Plaintiff's counsel also

d that he could not travel downtown. The

medical statement as to

|
lI
|

3


Court granted this motion and ordered Plaintiff to be deposed within seven days at a location near
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 a 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 on the motion 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. 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 incontinence. 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 1 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 Plaintiffs physician stating that

Plaintiff had a broken spine and that Plaintiff experiences severe disabling pain if he sits for longer


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RICHARD FRANZEN, )
)
Plaintiff, )
) No. 03 C 0641
v. )
) Judge John W. Darrah
ELLIS CORPORATION, y D
)
Defendant. ) OCKETED
SEP 1 5 2004
MEMORANDUM OPINION AND ORDER

Presently pending before the Court are Plaintiff's Motion to Reconsider, Defendant’s Second

Motion for Involuntary Dismissal and Defendant’s Third Motion for Involuntary Dismissal.
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 Plaintiff'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 period of time during defense counsel’s questioning of
Plaintiff, repeatedly coaching the witness during the deposition, and making unprofessional 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 and that Plaintiff's counsel was to refrain from the
sanctionable conduct during further depositions. Plaintiff's counsel originally agreed but later orally

moved that Plaintiff's deposition be taken elsewhere because Plaintiff had difficulty traveling. The


CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Reconsider is denied. Defendant’s Second
Motion for Involuntary Dismissal is denied as moot. Defendant’s Third [Amended] Motion for

Involuntary Dismissal is denied.

Dated: cf 4 2004 4

J W. DARRAH
United States District Judge

12