IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID FLEURY, individually and on )

behalf of similarly situated individuals, )

)

Plaintiff, ) No. 20 C 390

)

v. ) Magistrate Judge Jeffrey Cole

)

UNION PACIFIC RAILROAD COMPANY, )

a Delaware corporation, )

)

Defendant. )

 MEMORANDUM OPINION AND ORDER

To say that discovery has been a continual source of heated disagreement in this case would

not adequately convey what has occurred. Counsel have required repeated intervention from the

court [Dkt. #108, #111, #114, #121, #125, #144, #152, #174, #181, #186], and have filed nearly

seven hundred pages of briefs and exhibits attempting to detail their purportedly insurmountable

difficulties. [Dkt. #195, #193, #189, #187, #185, #184, #180, #171, #170, #169, #164, #162, #155-

157, #148, #143, #123, #120, #112, #110, #107, #103, #95]. And, with little more than a month to

go before fact discovery closes, they have returned to the lists, with the defendant filing a motion

to compel on September 11

th [#189], and the plaintiffs answering with a motion to compel on

September 21st. [#193]. This Order is about the former. 

We just used the phrase “fact discovery closes,” but does it? Ever? It began in earnest on

June 2, 2022, with an original discovery deadline of September 30, 2022. [Dkt. ## 89, 91]. The

parties missed that deadline and several after that. [Dkt. #95, 107, 143, 148, 180]. Extensions for

the parties were always generous: 120 days [Dkt. #96], 90 days [Dkt. #108], 120 days [Dkt. #152],

60 days [Dkt. #181]. But, they have never been generous enough for the partes. The most recent

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among those extensions was “the Final Extension of the discovery schedule applicable to this case.”

[Dkt. #181]. But, that seems fanciful with motions to compel pending and that plaintiffs still

struggling, after three years and eight months, to put together a final version of their Complaint with

a class representative.

The plaintiffs’ difficulties in that area are front and center in the dispute that gave rise to the

defendant’s motion to compel discovery regarding Mr. Nunnery. The plaintiffs added Mr. Nunnery

as a named plaintiff in their Second Amended Complaint back on March 20, 2023, which, based on

Judge Alonso’s instructions, was either five or three days late. [Dkt. #132 (deadline thirty days from

February 15th); #139 (“. . . the 30-day date is March 15.”)]. In any event, it seems that the addition

of Mr. Nunnery was due to the fact that the original named plaintiff, Mr. Fluery, had consented –

albeit belatedly – to having his alleged biometric information collected. But, according to the

defendant’s records, Mr. Nunnery never even accessed the defendant’s facilities and defendant –

after needing an extension of the time it had to answer [Dkt. #141] – moved to strike and dismiss

the plaintiffs’ third attempt at a class action Complaint. [Dkt. #145]. Perhaps unsurprisingly, given

the history of this case, the plaintiffs missed the deadline for filing the response brief to that motion

and needed an extension. [Dkt. ##159, 161]. On the day the response was due, plaintiffs instead

filed a motion for leave to file a fourth version of their Class Action Complaint. They were, again,

adding a new named plaintiff, Mr. Turner, given the problems with the previous two. 

But the Complaint continued to maintain Mr. Nunnery was a proper plaintiff as well [Dkt.

#167, at 8], and counsel have not yet removed him from the case. [Dkt. #189-6, Page 2/16]. On May

5, 2023, defendant had issued written discovery – Rule 33 interrogatories and Rule 34 requests for

production -- to Mr. Nunnery, as well as issuing a notice for his deposition. Plaintiffs missed the

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deadline for responding to those requests, and missed the extended deadline to which the defendants

had agreed. The final due date was three months ago. [Dkt. #189]. Plaintiffs wrote to the defendant

on July 27th and quite simply said they have no intention of producing Mr. Nunnery for a deposition

or responding to discovery. [Dkt. #189-6, Page 2/16]. They explained that they were:

attempting to remove him from this case via our currently-pending motion for leave

to amend. That said, in the event that our motion for leave to amend is denied, we

intend to remove Mr. Nunnery from this case to the extent that his name is not

included in class data that is produced with respect to non-Illinois CDL holders.

[Dkt. #189-6, at 2/16]. So the plaintiffs would not remove Mr. Nunnery from the equation, but, at

the same time, they refused to participate in discovery regarding him. “L'audace, l'audace, toujours

l'audace.” That is not only audacious but unacceptable as well. But it gets worse. 

On September 18, 2023, the plaintiffs were given a deadline to respond to the defendant’s

motion to compel the Nunnery discovery: “not later than 12:00pm on 9/22/23. If a response is not

filed by 12:00pm on 9/22/23, the motion will be granted.” [Dkt. #192]. But, as with many previous

deadlines, the plaintiffs missed that one as well, filing what has to be characterized as a

disappointingly unhelpful response three hours late. The plaintiffs offered no excuse for their late

filing, seemingly just choosing to disregard the court’s deadline [Dkt. #195], even though a

seemingly minimal delay can be fatal. Schedules count and lawyers are not at liberty to disregard

them as their convenience dictates. Castelino v. Rose-Hulman Inst. of Tech., 999 F.3d 1031, 1043

(7th Cir. 2021); Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir. 2005). 

Here’s why the response, late or not, is disappointing. In it, the plaintiffs continue to refuse

to respond to defendant’s four-month-old discovery regarding Mr. Nunnery and concede that they

have known for some time that Mr. Nunnery does not have standing. [Dkt. #195, at 1]. But, at the

same time, counsel also refuse to drop him from the case voluntarily. Since the plaintiffs wrote that

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email, they have reviewed production from the defendants and confirmed and concede that Mr.

Nunnery does not have standing to be in this case. [Dkt. #195, at 1]. They won’t say when they

made this discovery, but still have not dismissed him from what is currently their operative

Complaint – the Second Amended Complaint. [Dkt. #135]. Instead, plaintiffs instruct me and the

defendant to simply wait until Judge Hunt rules one way or another on the plaintiff’s motion for

leave to amend: 

Mr. Nunnery is set to be removed from this case no matter how Judge Hunt rules on

Plaintiffs’ Motion for Leave to Amend. Given this, Defendant can identify no

measure of prejudice that has resulted from Plaintiff Nunnery’s refusal to submit to

discovery in a case that he will soon no longer be a part of. Nor does Defendant even

attempt to do so. Accordingly, pursuant to its broad discretion to control discovery

here, the Court should simply wait until Judge Hunt resolves Plaintiffs’ Motion for

Leave to Amend rather than compel Plaintiffs’ production of discovery that

Defendant does not even want.

[Dkt. #195, at 3]. Obviously, if the plaintiffs are to be believed, the thing for the plaintiffs to have

done all along was to voluntarily dismiss Mr. Nunnery from a case that has suffered more than

enough needless delays. As the plaintiffs remind me, I have no authority to dismiss him. [Dkt. #195,

at 1& n.1]. By the same token, the plaintiffs have no authority to dictate what discovery is

appropriate and pursuant to what schedule it should be taken.

So, we are in limbo, courtesy of the plaintiffs’ whims. While Mr. Nunnery remains in the

case, he was and is a proper target of discovery. I have no way of knowing why the plaintiffs have

not dismissed him and while he has no standing and is “set to be removed” he has still not been

removed. But, at the same time, I am loath to order what may prove to be unnecessary discovery

in a case where discovery has dragged on for so long. Accordingly, the defendant’s motion to

compel that discovery [Dkt. #189] is reluctantly denied. Should Mr. Nunnery remain in the case, 

discovery will proceed against him immediately.

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ENTERED: 

UNITED STATES MAGISTRATE JUDGE

DATE: 9/25/23

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