IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VERA BRADLEY DESIGNS, INC, )

)

Plaintiff, ) No. 20 C 2550

)

v. ) Magistrate Judge Jeffrey Cole

)

AIXIN LI, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On April 20, 2021, the plaintiff filed a motion to extend the discovery deadline by at least

60 days. At that time, discovery was set to close on May 1, 2021 [Dkt. #91], and plaintiff had filed

a motion on April 16thfor “terminating sanctions” – better know as default judgment – against the

defendants under Fed.R.Civ.P. 37(b)(2) (Failure to Comply with a Court Order). According to the

plaintiff’s supporting memorandum, it knew defendants had purportedly failed to comply with the

order of March 1

st

as of March 22nd [Dkt. #103, at 4], as well as knowing that discovery closed on

May 1st. Still, the plaintiff waited a month to request an extension. 

Plaintiff wants either (1) a 60-day extension of discovery from the date defendants comply

with the March 1

st Order, or (2) a 60-day extension from the date the court rules on its motion for

default judgment. Defendants argued that plaintiff didn’t even bother to meet and confer over the

alleged deficiencies, of course, and completed document production thereby complying with the

order. [Dkt. ##95, 105]. 

When Judge Coleman held a hearing on the plaintiff’s motion for default, the parties were

amenable to complying with Local Rule 37.2 (which, after all, is mandatory) and they met and
conferred over the alleged deficiencies in production. That is a step forward over where the parties

were when this dispute was before me, and basically unable to agree on anything – down to whether

answers were verified, and unwilling to reasonably follow through on a glitched Local Rule 37.2

teleconference. [Dkt. #59, at 5; #62, at 2-3; #90, at 3]. That change of heart is likely owing to the

difference between the fee-shifting and sanctions provisions under Fed.R.Civ.P. 37. Courts have

treated Fed.R.Civ.P. 37(a)(5) as a fee-shifting provision rather than a sanction, and one which

magistrate judges can handle to completion on a discovery referral. See, e.g., Hangzhou Aoshuang

E-Com. Co. v. 008Fashion, 336 F.R.D. 154, 156 (distinguishing fee-shifting from sanctions); Cage

v. Harper, 2020 WL 1248685, at *5 (N.D. Ill. 2020)(collecting cases on Rule 37(a)(5)). 

Fed.R.Civ.p. 37(b), on the other hand, allowing for default judgment or dismissal of a case for failure

to comply with a court order is more along the lines of a contempt proceeding, and ends the case,

and courts have treated that as a dispositive matter, see Fed.R.Civ.P. 72(b), which can only be

addressed through a referral for a report and recommendation, which the district court judge

generally asks for and then reviews de novo. See, e.g., Stewart v. Credit Control, LLC, 2020 WL

3843663, at *1 (N.D. Ill. 2020); Fed. Trade Comm'n v. 6654916 Canada, Inc., 2010 WL 2925693,

at *3 (N.D. Ill. 2010). 

Defendants made a supplemental production of documents on May 4

th

, and then agreed to

continue their document search for another supplemental production. As such, the parties combined

to ask that any hearing on the motion for default be postponed until May 21st

to allow for any

additional document production and review by plaintiff. [Dkt. #109]. While these efforts are

appreciated, they would have been much more appropriate at the end of last year.

In any event, things are in a state of flux and it is impossible to say for now whether or how

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much more time will be needed for discovery. According to the plaintiff, defendants’ purported

failure to comply with the March 1

st Order has prevented them from “mov[ing] forward with

depositions and third party discovery.” Plaintiff is not clear as to what depositions and third party

discovery it has not yet taken, or why it left those items until so late in the game. Presumably, they

do not all hinge on whatever documents plaintiff feels defendants have not provided. Discoverywas

not “stayed” while plaintiff gathered itself to file its motion for default. 

Nevertheless, the plaintiff’s motion for default did have an effect on these proceedings. 

Perhaps the parties will reach an entente over defendants’ supplemental document production and

the motion will be withdrawn. If not, and the court rules in plaintiff’s favor, the motion to extend

discovery will be moot. If the court finds defendants have complied, or that some lesser sanction

than contempt of the court order is appropriate, some additional time for discoverywill be necessary.

In this regard, 60 days seems excessive, especially as we do not know what plaintiff has in mind and

there is nothing to demonstrate that it is all necessarily dependent on whatever documents plaintiff

thinks are missing. As such, it is not appropriate to give plaintiff a two-month card to cash in at a

later date at this time. The plaintiff’s motion [Dkt. #102] is denied without prejudice to refiling –

for a limited reopening of discovery if necessary – once the court has ruled.

ENTERED: 

UNITED STATES MAGISTRATE JUDGE

DATE: 5/5/21

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