FERGUSON v. COOK COUNTY ILLINOIS (2025)

ORDER

This suit under 42 U.S.C. §§ 1983 and 1985(3), as well as Illinois law, arises out of plaintiff Timothy Ferguson's alleged arrest and detention on July 19, 2019. See Ferguson v. Cook Cnty., 2021 WL 3115207, at *1–3 (N.D. Ill. July 22, 2021) (Dow, J.) (summarizing complaint). Alleging that his former attorney effectively abandoned him, Ferguson, now represented by new counsel, moves to reopen discovery and to delay a ruling on defendants’ fully briefed summary judgment motions. ECF No. 197. Certain defendants oppose Ferguson's motion, arguing that former counsel did not act diligently and that they will suffer serious prejudice if discovery is reopened in this four-year-old case in which summary judgment motions have been on file for more than eight months. See Resp., ECF No. 200.

The parties litigated the instant motion under the “excusable neglect” standard of Federal Rule of Civil Procedure 6(b)(1)(B), but reopening discovery entails changing the discovery cutoff set in the Rule 16(b) scheduling order. See Fed. R. Civ. P. 16(b)(3)(A). As a result, Rule 16(b)(4)’s “good cause” standard governs plaintiff's request to reopen discovery. See Allen v. Brown Advisory, LLC, 41 F.4th 843, 852–53 (7th Cir. 2022); McCann v. Cullinan, 2015 WL 4254226, at *10 (N.D. Ill. July 14, 2015). “In making a Rule 16(b) good-cause determination, the primary consideration for district courts is the diligence of the party seeking amendment” of the scheduling order. Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011) (citations omitted).

This case was originally assigned to Judge Dow, who found at the pleading stage that plaintiff's former attorney, Beau B. Brindley, missed the deadline to respond to defendants’ motions to dismiss the complaint without an adequate explanation. See Ferguson v. Cook Cnty., 2021 WL 3115207, at *4–5 (N.D. Ill. July 22, 2021). Since that time, the record establishes that Brindley did not serve the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1); that he failed to take several key depositions despite Judge Fuentes extending discovery deadlines on five occasions;¹ and that Brindley did not respond at all to defendants’ summary judgment motions. Illustrative of the pattern of missed deadlines, on February 20, 2024, Judge Fuentes denied Brindley's final motion to extend the discovery deadline, stating, “At this point the Court has no more confidence that a deadline it sets for completion of the Bednarek deposition will be met, and we are back to where we were in September 2023, in the fictional town of Macondo, where nothing ever happens here.” Min. Order (Feb. 20, 2024), ECF No. 159.

Ferguson represents that Brindley failed to communicate with him about this case's status and progress. Mot. Reopen Discovery 3–6, ECF No. 197. Ferguson decided to look into the case's status himself in February 2025. Id. ¶ 39. Upon learning that, in Ferguson's words, Brindley had done “almost nothing,” he promptly hired new counsel, who filed the pending motion in March 2025. Id. ¶¶ 39–42. By that time, defendants’ summary judgment motions had been on file for more than eight months without a response from Ferguson.

Through his new attorney, Ferguson asks to reopen discovery for three months to conduct essential discovery Brindley did not pursue, including taking the depositions of several defendants. New counsel has filed a declaration in compliance with Fed. R. Civ. P. 56(d) identifying the specific discovery he wishes to take—four depositions of individual defendants, one fact witness deposition, and written discovery—and averring that Ferguson cannot oppose the summary judgment motions without it. See Sadelski Decl., ECF No. 199. Defendants do not challenge the sufficiency of counsel's declaration, and they do not dispute that the requested discovery is necessary for Ferguson to oppose summary judgment in a meaningful manner.

Defendants cite cases in which the court declined to reopen discovery based on negligence attributable to the plaintiff himself, as with the pro se plaintiff in Browning v. Lott, 2024 WL 1071065, at *2–3 (N.D. Ind. Feb. 22, 2024), or in which the plaintiff's motion to reopen discovery was “entirely devoid of any explanation or reason that would justify a deadline extension.” Fricke v. Menard, Inc., 2023 WL 167462, at *2 (S.D. Ind. Jan. 12, 2023). This case is different because the uncontested record establishes that Brindley effectively abandoned his client during and after discovery. The Supreme Court and Seventh Circuit have drawn a “distinction between attorney negligence—which is attributable to the client—and attorney abandonment—which severs the principal–agent relationship, making the attorney's acts no longer attributable to the client.” Lombardo v. United States, 860 F.3d 547, 553 n.1 (7th Cir. 2017) (citing Maples v. Thomas, 565 U.S. 266, 281–83, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012)). And while “[l]oss of counsel is not a per se reason that a district court might reopen discovery,” it is nevertheless “one of many that a court might consider in exercising its broad discretion to grant or deny a continuance.” Ruark v. Union Pac. R.R. Co., 916 F.3d 619, 630 (7th Cir. 2019) (citation omitted). In the rare circumstances presented here (attorney abandonment over a period of years coupled with an uncontested allegation that the attorney failed to communicate with his client), it would be improper to attribute Brindley's litigation conduct to his client for purposes of the Rule 16(b)(4) “good cause” analysis. The court therefore finds that Brindley's abandonment, coupled with Ferguson's diligent efforts to pursue the case himself, furnish a highly compelling justification for reopening discovery.

As defendants argue, reopening discovery will impose substantial costs on them in terms of increased expense, additional delay, and the inconvenience involved in conducting additional discovery. Indeed, defendants conducted years of discovery and drafted summary judgment motions, which will, in all probability, need to be re-drafted if additional discovery occurs. In many cases, this sort of prejudice to the opposing party justifies denial of a motion to reopen discovery. See, e.g., Saccameno v. Ocwen Loan Serv'g, LLC, 2018 WL 1240347, at *9–11 (N.D. Ill. Mar. 9, 2018) (Gottschall, J.). Here, however, the prejudice to defendants may be somewhat ameliorated. If (as has not yet occurred) after receiving notice and an opportunity to be heard Brindley is found to have abandoned his client without a sufficient explanation, sanctions may be available to compensate defendants for their increased costs attributable to Brindley's conduct. Meanwhile, the uncontested declaration of Ferguson's new attorney makes clear that if discovery is not reopened, Ferguson will effectively lose the opportunity to present his case on the merits due to his former attorney's de facto abandonment. For these reasons, the court, after weighing the prejudice to the parties, finds that good cause exists under Rule 16(b)(4) to reopen discovery, and that Ferguson has satisfied the requirements of Rule 56(d) to show that he cannot oppose the pending summary judgment motions without further discovery.

Accordingly, plaintiff's motion to reopen discovery is granted. As authorized by Rule 56(d), defendants’ pending motions for summary judgment are denied without prejudice because they will, in all likelihood, need to be re-briefed following additional discovery. This case is re-referred to Judge Fuentes for supervision of reopened discovery consistent with this order.

FOOTNOTES

1.   Seven motions to extend discovery deadlines were filed in this case, five of which were granted. See, Min. Order (Mar. 16, 2022), ECF No. 101; Min. Order (Sept. 28, 2022), ECF No. 117; Min. Order (May 25, 2023), ECF No. 138; Min. Order (Dec. 29, 2023), ECF No. 153; Min. Order Jan. 16, 2024, ECF No. 155; see also, Min. Order (Sept. 12, 2023), ECF No. 146; Min. Order (Feb. 20, 2024), ECF No. 159 (denying motions to extend discovery deadlines).

Joan B. Gottschall, United States District Judge