IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Stewart Davies ) 

 ) 

 Plaintiff, ) 

 ) Case No.: 20-cv-50208 

v. ) 

 ) Magistrate Judge Margaret J. Schneider

LoanCare, LLC ) 

 ) 

 Defendant. ) 

REPORT AND RECOMMENDATION

It is the Court’s Report and Recommendation that Defendant LoanCare, LLC’s Motion to 

Dismiss [139], be granted. Any objection to this Report and Recommendation must be filed by 

December 13, 2022. Failure to object may constitute a waiver of objection on appeal. See Goyal 

v. Gas Tech. Inst., 389 Fed. App'x 539, 543 (7th Cir. 2010). 

BACKGROUND

Plaintiff Stewart Davies (“Plaintiff”) brings claims under the Americans with Disabilities 

Act (ADA), 42 U.S.C. §§ 12101 et seq., and the common law of contract [1-1]. Plaintiff alleges

that Defendant LoanCare, LLC (“Defendant”) failed to credit or acknowledge payments made by 

Plaintiff, in violation of Plaintiff’s home loan agreement, and failed to reasonably accommodate

his disability. Id. On June 16, 2022, the Court granted in part Defendant’s motion to dismiss and

to enter sanctions [124]. In that order, the Court extended the deadline for written discovery to July

21, 2022, and advised that no further extensions would be entertained. Id. On August 5, 2022, 

after receiving Defendant’s petition for award of attorneys’ fees [125], as well as Plaintiff’s (late)

response to the petition [133], the Court granted in part Defendant’s petition [136]. In that order,

the Court denied Plaintiff’s motion to extend discovery [127] and allowed either party to file a 

motion suggesting how the case should proceed. Plaintiff filed a motion for extension of time to

file his “dispositional” motion [137] and the Court granted both parties additional time to file any

such motion [138]. On September 2, 2022, Defendant filed a motion to dismiss [139], which is the

subject of this order. Plaintiff then filed another motion for extension of time to file a 

“dispositional” motion [140], which the Court granted [141]. On September 7, 2022, Plaintiff filed

a third motion for extension of time to file a “dispositional” motion [142]. The Court denied this

motion but gave Plaintiff additional time to respond to Defendant’s motion to dismiss and set a 

reply date for Defendant [143]. On October 7, 2022, the day Plaintiff’s response brief was due,

Plaintiff sent his response to the Court’s Chambers’ email (at 7:14 p.m.). The Court directed the 

Clerk to file the response on the docket and extended the time for Defendant to reply [144].

Defendant filed his timely reply on October 25, 2022 [146]. Defendant’s motion to dismiss [139], 

is now before the Court for a Report and Recommendation to the District Court Judge. 

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In the motion, Defendant argues, among other things, that Plaintiff’s claims should be 

dismissed based on his repeated failures to comply with this Court’s discovery orders. Plaintiff 

responds that dismissal is not appropriate because the parties continue to disagree over discovery 

requests. Defendant replies that Plaintiff’s characterization of the case’s history as nothing more 

than discovery disputes is disingenuous, and the discovery issues amount solely to Plaintiff’s 

failure to comply with Court orders. 

In its June 16, 2022, order, the Court set out (in some detail) the procedural history of this 

case, including the protracted discovery. See [124]. In an effort to provide an accurate Report, the 

Court repeats that history here in addition to the relevant filings after June 16, 2022. 

On August 3, 2020, the Court adopted the parties’ proposed case management order, which

set a deadline of August 25, 2020, for the parties’ initial disclosures and a fact discovery end date

of December 17, 2020 [22]. On September 21, 2020, Defendant served written discovery requests

on Plaintiff [25]. Responses were due by October 21, 2020 [95, 2]. On October 21, 2020, Plaintiff

filed a motion for extension of time until November 12, 2020, to complete his written responses, 

claiming that counsel needed additional time to review Plaintiff’s detailed medical records [30]. 

On October 29, 2020, the Court granted the motion, which was unopposed [33]. On November 2, 

2020, Plaintiff filed a motion for leave to submit his initial disclosures even though the deadline 

had expired by over two months [35]. On November 3, 2020, the Court granted the motion, which

was unopposed [36].

A week later, Defendant filed a motion to extend the fact discovery end date, based on 

Plaintiff’s failure to timely produce discovery [37]. Thereafter, the Court extended the fact

discovery cutoff to February 16, 2021 [42]. The Court also granted Plaintiff’s oral motion to

extend the deadline to submit his responses to Defendant’s discovery requests to November 30, 

2021. Id. Defendant then filed a motion to dismiss Plaintiff’s complaint for failing to comply 

with the Court’s discovery orders or, in the alternative, compelling Plaintiff’s responses to

outstanding discovery requests and entering sanctions [43]. On December 22, 2020, the Court 

denied Defendant’s motion to dismiss and ordered Plaintiff to respond to Defendant’s discovery 

requests by January 15, 2021 [47]. The Court warned Plaintiff that the “failure to comply with

[its] order will result in [a] report and recommendation that sanctions be imposed.” Id.

On January 15, 2021, Plaintiff served answers to Defendant’s discovery requests [48]. 

During a hearing a few days later, the Court granted Defendant’s oral motion to extend the fact

discovery end date to March 16, 2021 [49]. On January 29, 2021, counsel for Defendant sent

correspondence to Plaintiff outlining various deficiencies in Plaintiff’s discovery responses and

requesting supplemental responses by February 12, 2021 [95-2]. Subsequently, on February 24, 

2021, Defendant filed a motion to compel the supplemental responses [54]. Thereafter, the Court 

granted Plaintiff’s oral motion to extend time to March 25, 2021, to supplement its responses. 

[57]. 

Then, on April 12, 2021, Plaintiff’s attorney filed a motion to withdraw as counsel [59], 

which the Court granted. Given the change in counsel, the Court also dismissed Plaintiff’s motion

to compel without prejudice [60].

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On May 12, 2021, the Court held a telephonic status conference where new counsel 

appeared on Plaintiff’s behalf and requested time to familiarize himself with the case file [63]. 

The Court struck the fact discovery deadline and gave Plaintiff until June 11, 2021, to provide the 

outstanding supplemental discovery responses that were the subject of the motion to compel [63]. 

The Court subsequently granted Plaintiff a short extension of time until June 25, 2021, to provide 

the supplemental discovery responses [64]. On that deadline (June 25, 2021), Plaintiff asked the 

Court to extend the fact discovery close, stating that he needed to subpoena certain phone records

and therefore needed more time to complete discovery [65]. The Court granted the motion, 

extending the fact discovery deadline to September 30, 2021 [66]. On August 2, 2021, the Court 

held a telephonic status conference during which it granted Plaintiff a further extension to

September 10, 2021, to provide the outstanding discovery responses to Defendant [67]. Again, on 

the deadline for Plaintiff’s supplemental disclosures (September 10, 2021), Plaintiff filed a motion

for extension of time [68]. On September 13, 2021, the Court denied Plaintiff’s motion for failure

to comply with the Court’s meet and confer requirement and ordered Plaintiff to include in the 

upcoming status report information regarding what, if any, discovery had been responded to and

the reasons for the delay. [69] 

On September 17, 2021, the parties filed the joint status report [70], and Plaintiff filed

another motion for extension of time [71]. Plaintiff stated that he was still waiting to receive a 

response to his subpoena for phone records. Id. In addition, Plaintiff stated that Defendant

disclosed a number of audio recordings that counsel needed additional time to review. Id. On

September 21, 2021, the Court granted Plaintiff’s motion, giving him until September 24, 2021, to

provide the Court with a copy of the subpoena he issued to the phone company, and extending the 

fact discovery deadline as well as the deadline for Plaintiff to provide the supplemental responses 

to November 30, 2021 [72]. On September 24, 2021, Plaintiff filed another extension of time to

provide the subpoena [73]. The Court granted this motion [74]. Thereafter, Plaintiff filed two more

motions for extensions of time to provide the Court with the requested documents [74], [77].

Finding that counsel’s time would be better spent working on discovery responses, the Court 

relieved counsel of the requirement to provide the subpoena [78]. 

On December 10, 2021, Plaintiff’s attorney filed a motion to withdraw as counsel [81]. At

the telephonic status conference on the same day, Plaintiff’s attorney withdrew the motion and

moved orally to further extend fact discovery [82]. The Court granted the motion, over 

Defendant’s objection, extending the fact discovery end date to December 22, 2021. Id. On

December 31, 2021, Defendant filed a status report informing the Court that Plaintiff had produced 

some additional minimally relevant information but had yet to produce any information responsive 

to the outstanding discovery requests related to Plaintiff’s alleged damages [85].

On January 11, 2022, Plaintiff’s counsel filed another motion to withdraw his 

representation [87], which the Court denied a few days later for failure to provide a sufficient

reason to withdraw his representation [93]. During a telephonic hearing on January 20, 2022, the 

Court granted Plaintiff one more day to produce any additional documentation in response to the 

outstanding discovery requests. [89]. On Saturday, January 22, 2022, Plaintiff filed yet another 

motion for extension of time through that same day to complete the discovery [90]. On January 

24, 2022, the Court denied Plaintiff’s motion to extend discovery, noting that the filing was

inappropriate as it was beyond the due date [91]. The Court also noted that it assumed counsel 

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had disclosed the discovery as stated in the motion. Id. On February 2, 2022, Defendant filed its

renewed motion to dismiss and for sanctions [94]. At 11:59 p.m. on the day his response brief was

due, Plaintiff filed a motion for extension of time to respond to the motion [97]. As requested, the 

Court gave Plaintiff two extra days to file the response brief [98], and again, Plaintiff filed another

motion for extension of time after hours on the date the brief was due [99]. Plaintiff eventually

filed his response brief two days after its extended due date. 

In March, April, and May of 2022, Plaintiff filed three motions for extension of time to

complete fact discovery [112], [115], [117], which the Court granted [113], [116], [119]. On May

30, 2022, Plaintiff filed a fourth motion to extend time to complete fact discovery [121]. On June 

16, 2022, the Court granted in part and denied in part Defendant’s motion to dismiss and for

sanctions [124]. Additionally in that order, the Court granted Plaintiff’s motion to extend discovery

[121] in part – based on Plaintiff’s representations in a status report that Plaintiff would make

substantial progress on discovery prior to leaving on a vacation scheduled for June 18, 2022 – 

giving him until July 21, 2022, to complete all written discovery. The Court made clear no further

motions for extensions of time would be entertained [124]. Plaintiff filed a fifth motion to extend

discovery on July 21, 2022 [127]. On August 5, 2022, the Court granted in part Defendant’s fee

petition – ordering Plaintiff to pay Defendant $10,697.50 in fees [136]. Also in that order, the 

Court denied Plaintiff’s motion to extend discovery, reminding Plaintiff that the Court previously 

stated there would be no more extensions of discovery [136]. The Court allowed both parties to

file motions setting forth how they believed this case should proceed. Id. Defendant filed the 

motion to dismiss [139] which is the subject of this order. The Court granted Plaintiff additional 

time to file any relevant motion [137] but denied Plaintiff’s request for a second continuance [143]. 

The Court gave Plaintiff adequate time to respond to Defendant’s motion to dismiss, which he did

[145]. Defendant filed its reply [146]. 

In its motion, Defendant argues dismissal of this suit is proper under Fed. R. Civ. P. 37 and

41, and the Court’s August 5, 2022, order granting in part Defendant’s petition for award of

attorneys’ fees and denying Plaintiff’s motion to extend discovery. See [136].

LEGAL STANDARD

Federal Rule of Civil Procedure 37(b) provides for sanctions where a party has obstructed 

discovery by failing to comply with a court order. Fed. R. Civ. P. 37(b)(2)(A). “The sanctions 

outlined in Rule 37 provide a district court with valuable tools for preventing the parties to a 

lawsuit from ‘unjustifiably resisting discovery.’” Tamari v. Bache & Co. (Lebanon) S.A.L., 729 

F.2d 469, 472 (7th Cir. 1984). In addition, they “provide the district court with an effective means 

of ensuring that litigants will timely comply with discovery orders.” Melendez v. Ill. Bell Tel. Co., 

79 F.3d 661, 670 (7th Cir. 1996). “District courts must be able to enforce deadlines to effectively 

manage their docket.” Equal Employment Opportunity Commission v. Wal-Mart Stores East, L.P., 

46 F.4th 587, 601 (7th Cir. 2022). The exercise of the Court’s power to sanction “requires [it] to 

find that the responsible party acted or failed to act with a degree of culpability that exceeds simple 

inadvertence or mistake before it may choose dismissal as a sanction for discovery violations.” 

Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). Where sanctions are called for, 

the court must ensure that they are proportional to the underlying conduct. Donelson v. Hardy, 

931 F.3d 565, 569 (7th Cir. 2019). In addition to a failure to comply with a court order regarding 

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discovery, the court may, under Rule 37(b)(2)(A), dismiss a case for a failure to comply with a 

court order directing a party to pay sanctions. Bedford v. Neighborhood Connections, 173 Fed. 

Appx. 502, 505-06 (7th Cir. 2006) (“[C]ourt was within its discretion to sanction [plaintiff’s 

conduct] with a fine and, when [plaintiff] refused to pay the fine, dismiss the case.”). 

Under Fed. R. Civ. P. 41(b), “[i]f the plaintiff fails to prosecute or to comply with these 

rules or a court order, a defendant may move to dismiss the action or any claim against it.” There 

is no requirement that the court enter a lesser sanction or that the court provide plaintiff with a 

warning prior to dismissal. “There is no need to warn that dismissal is coming when, as here, the 

defendant files a motion with notice to the plaintiff asking for dismissal...In such a situation, the 

plaintiff has an opportunity to explain itself by responding to the motion...If, after hearing from 

both sides, the district court believes dismissal is appropriate, no purpose would be served by 

issuing a warning: the motion itself was the warning.” McMahan v. Deutsche Bank AG, 892 F.3d 

926, 933 (7th Cir. 2018) (citations omitted). See also Nelson v. Schultz, 878 F.3d 236, 238-39 (7th 

Cir. 2017) (Both Rule 37(b) and 41(b) require that the judge tailor sanctions proportional to the 

conduct. Court found “judge did not abuse his discretion [in dismissing plaintiff's case] because 

[plaintiff’s] discovery violations were willful and repeated.”). “The standards for dismissal under 

Rules 41(b) and 37(b) overlap, but there are differences between the two. Under Rule 41(b), a case 

should only be dismissed when there is a clear record of delay or contumacious conduct, or when 

other drastic sanctions have proven unavailing. Rule 37, on the other hand, requires a finding of 

willfulness, bad faith or fault on the part of the defaulting party.” Brown v. Columbia Sussex Corp., 

664 F.3d 182, 190 (7th Cir. 2011) (citations and quotations omitted).

ANALYSIS

Defendant’s motion seeks relief pursuant to Rule 37(b)(2), which authorizes sanctions as 

severe as dismissal if a party “fails to obey an order to provide or permit discovery,” Fed. R. Civ. 

P. 37(b)(2). As noted above, in June, the Court granted in part and denied in part Defendant’s 

motion to dismiss and to enter sanctions [124]. In that order, the Court ordered a monetary sanction 

and accepted Plaintiff’s representations that Plaintiff would make “substantial production” of 

discovery prior to leaving on a vacation and granted Plaintiff an extension of time to complete this 

discovery. The Court gave Plaintiff until July 21, 2022, to accomplish this and made clear to 

Plaintiff that the Court would not entertain any further motions to extend written discovery. As the 

record in this case now bears out, Plaintiff did not keep the promise, filed a subsequent motion for 

extension of time (which the Court denied), and ultimately did not produce the discovery as 

ordered. 

In its brief, Defendant advises the Court that based on Plaintiff’s claims of breach of 

contract and a violation of the Americans with Disabilities Act, the discovery sought by Defendant 

– including Plaintiff’s payment history, records of payments allegedly made, whether Plaintiff 

initially breached his mortgage, information regarding Plaintiff’s claimed disability, how his 

disability prevents him from continuing to make mortgage payments, and why the sought-after 

accommodation would be reasonable – is necessary to understand Plaintiff’s claims and would 

allow Defendant to properly prepare defenses to the claims. Clearly, Plaintiff’s refusal to provide 

answers and documents responsive to the discovery requests prejudices Defendant. The Court 

finds that dismissal of this suit is a proportional sanction to Plaintiff’s conduct and recommends 

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such sanction to the District Court. 

Despite the Court’s willingness to grant Plaintiff repeated motions for extensions of time 

to produce discovery to Defendant, Plaintiff has refused to comply with his discovery obligations

and the Court’s orders for well over a year. In Brown, the Seventh Circuit found dismissal of 

plaintiff's actions warranted as a sanction for similar discovery violations. There, the court found 

plaintiff’s discovery violations comparable to the plaintiffs’ conduct in Aura Lamp & Lighting v. 

International Trading Corp., 325 F.3d 903, 904-06 (7th Cir. 2003), where plaintiff “repeated[ly] 

faile[d] to meet court-ordered deadlines despite several extensions, including ‘one final extension’ 

and a warning that dismissal was impending.” Brown, 664 F.3d at 191. In Brown, plaintiffs missed 

five discovery deadlines, violated two court orders, and completely failed to respond to numerous 

interrogatories. Id. The court further held “[t]he dismissal is further supported by the fact that the 

district court first attempted to use the less severe sanction of paid expenses to compel compliance 

from [plaintiffs], but to no avail.” Id. at 191-92. Here, Plaintiff’s conduct is even more severe. 

Plaintiff has motioned the Court for over 20 continuances. Within those motions, Plaintiff has 

made specific representations that discovery would progress. Relying on these representations and 

giving Plaintiff the benefit of the doubt, the Court granted these motions again and again, 

eventually giving Plaintiff a final admonition of no further extensions. See [24]. The Court has 

also directed Plaintiff to specifically comply in two Court orders – first, directing Plaintiff to 

respond to Defendant’s outstanding discovery requests by July 21, 2022 [124], and second, 

directing Plaintiff to pay Defendant $10,697.50 in attorneys’ fees in connection with Defendant’s 

first motion to dismiss. As represented by Defendant, Plaintiff has failed to comply with either 

Court order. 

“Before dismissing a suit as a sanction under Rule 37, the court must find that the plaintiff 

acted willfully, in bad faith, or at least, was ‘at fault’ for the failure to comply with discovery 

orders. Fault, in contrast to willfulness or bad faith, does not require a showing of intent, but 

presumes that the sanctioned party had ‘extraordinarily poor judgment’ or gross negligence, rather 

than mere mistake or carelessness.” Wentworth v. Columbia County, 19-cv-514-jdp, 2020 WL 

3542688, at *1 (W.D. Wisc. June 30, 2020) (citing Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 

775-76 (7th Cir. 2016)). Defendant argues that Plaintiff’s failure to adequately respond to 

Defendant’s discovery requests was willful and due to Plaintiff’s fault. Defendant further argues 

that Plaintiff’s conduct has led to two years of unnecessary motion practice which has increased 

Defendant’s costs, without any progress being made toward resolution. The Court agrees that 

Plaintiff’s failure to cooperate in discovery has frustrated Defendant’s ability to defend in this 

litigation. Additionally, the Court’s efforts to keep discovery moving forward were met, 

unfortunately, not with progress, but with repeated motions for extensions of time. 

For his part, Plaintiff argues in his response brief that dismissal is not the appropriate 

sanction “given the ongoing nature of the discovery dispute.” [145]. He further argues Defendant’s 

effort to secure dismissal based on Plaintiff’s failure to pay attorneys’ fees, as ordered by the Court, 

“is misguided.” Plaintiff provides no further arguments, nor does Plaintiff provide the Court with 

any supporting case law to bolster his arguments or directly respond to Defendant’s position in 

Defendant’s opening brief. Moreover, Plaintiff fails to point the Court to any specific discovery 

dispute or provide a basis for his refusal to pay attorneys’ fees, as directed. While the procedural 

history of this case may support a finding that Plaintiff has acted willfully and in bad faith, the 

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Court finds that Plaintiff, at the very least, has shown “extraordinarily poor judgment” or “gross 

negligence” and, therefore, is directly at fault for the failure to comply with the Court’s discovery 

orders.

For the above reasons, the Court recommends dismissal of this suit under Fed. R. Civ. P. 

37(b)(2). Plaintiff has failed to participate meaningfully in the discovery process and has failed to 

obey two Court orders. The Court finds Plaintiff is directly at fault by exhibiting extraordinarily 

poor judgment. This case has been languishing for more than two years – a year and a half of that 

time under current Plaintiff’s counsel’s inattentiveness. While severe, the Court finds that 

dismissal is the only appropriate remedy. 

Finally, while the Court finds that a sanction of dismissal under Rule 41(b) – a stricter 

standard than a dismissal under Rule 37(b) (see Brown, 664 F.3d at 190-91) – may be appropriate 

and justified (here, there is a “clear record of delay or contumacious conduct”), because the Court 

finds dismissal appropriate under Rule 37(b)(2), the Court need not reach Defendant's argument 

of dismissal under Rule 41(b). 

CONCLUSION

For the foregoing reasons, it is the Court’s Report and Recommendation that Defendant

LoanCare, LLC’s Motion to Dismiss [139], be granted. Any objection to this Report and 

Recommendation must be filed by December 13, 2022. Failure to object may constitute a waiver 

of objection on appeal. See Goyal v. Gas Tech. Inst., 389 Fed. App'x 539, 543 (7th Cir. 2010).

Date: 12/01/2022 ENTER:

_______________________________

 United States Magistrate Judge

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