CARL HAMILTON v. ILLINOIS DEPARTMENT OF HUMAN SERVICES (2023)

REPORT AND RECOMMENDATION

The defendant has filed a Motion to Dismiss this case [Dkt. #37] as a sanction for plaintiff's failure to have complied with my Order of November 17, 2022. [Dkt. ##35, 36]. Judge Gettleman has referred the matter to me for a Report and Recommendation. For the reasons that follow, I recommend that the defendant's Motion to Dismiss be granted, and that this case be dismissed with prejudice. The conduct of the plaintiff and his lawyer have violated the basic requirement that all parties and their counsel fairly cooperate in the discovery process, see, e.g., Mommaerts v. Hartford Life & Accident Ins. Co., 472 F.3d 967, 968 (7th Cir. 2007); Harrington v. City of Chicago, 433 F.3d 542 (7th Cir. 2006); Johnson v. J.B. Hunt Transport, Inc., 280 F.3d 1125, 1132 (7th Cir.2002); Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3rd Cir. 1995), and that discovery orders be scrupulously obeyed. See Littlejohn v. Bic Corp., 851 F.2d 673, 683 (3rd Cir. 1988); Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 72 (2nd Cir. 1988).

Unfortunately, in this case there has been a lengthy history of non-compliance with discovery on the plaintiff's part. As already noted in the previous Order, plaintiff has conceded the accuracy of the following timeline [Dkt. #34, at 1]:

May 26, 2022: defendant serves discovery requests. [Dkt. # 32-1].

June 26, 2022: plaintiff's responses are due as per Fed. Rules Civ. Proc. 33(b)(3), 34(b); plaintiff fails to provide any responses.

August 19, 2022: plaintiff finally provides responses, seven weeks late. The responses were incomplete; many were deficient, sketchy, and vague. [Dkt. #32-2, #32-3, 36, at 2-3].

September 19, 2022: defendant writes to plaintiff detailing deficiencies in Interrogatory Responses Nos. 2, 3, 4, 6, 8, 9, 10, 11, 12, 13, 14, and Requests for Production Nos. 1, 4, 30, 35, 36, asking for supplemental response, and requesting a Rule 37.2 conference. [Dkt. #32-4]. That same day, plaintiff responds asking for defendant's availability over the following two weeks, and defendant suggests September 26th or 27th. Plaintiff does not respond. [Dkt. #32-5].

September 26, 2022: after not hearing from plaintiff for a week, defendant writes checking to see about the Rule 37.2 conference. [Dkt. #32-5].

September 28, 2022: after still not hearing from plaintiff, defendant again writes checking to see about the Rule 37.2 conference. [Dkt. #32-5]. Plaintiff finally responds suggesting September 30th. Defendant offers October 3rd and plaintiff agrees. [Dkt. #32-5].

October 3, 2022: counsel finally have their conference; defendant agrees to allow plaintiff until October 24th to review responses and supplement them. [Dkt. #32-6].

October 25, 2022: as night follows day, defendant hears nothing from plaintiff on the 24th and writes to ask what's going on. [Dkt. #32-6].

October 27, 2022: yet again, defendant hears nothing from plaintiff and yet again writes to see when plaintiff will provide discovery responses, and says defendant will file a motion to compel if nothing is provided on the 28th. [Dkt. #32-6].

October 28, 2022: plaintiff finally replies, saying that plaintiff will provide “something” by November 4th. Plaintiff's counsel continues: “If that doesn't work, then do what is best for you and your client. My office has been in touch with Mr. Hamilton a few times over the last two weeks and we are waiting for outstanding items. Lastly, my MSJ response in another matter is due on Monday. I am working on that until then.” Defendant replies and agrees to wait until the 4th. [Dkt. #32-6]. November 4, 2022: plaintiff provides no discovery responses.

November 7, 2022: plaintiff writes to the defendant indicating that plaintiff's counsel is still working on “the Rule 37 response” and “will send it once done.” Defendant writes back to ask when plaintiff's discovery responses will be supplemented. Plaintiff's counsel explains that she will be talking with her client that evening. [Dkt. #32-7].

All of this is unfortunately too common in modern litigation. But, it should not be, and it is, quite frankly, unacceptable. Judges’ failures to properly monitor discovery is a source of constant criticism by reviewing courts, and is deemed to be the source of increased costs of litigation accounting for much of the abuses by plaintiffs’ and defendants’ lawyers, alike. See, e.g., Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536 (11th Cir. 1993)(Roney, J., concurring); Miller UK Ltd v. Caterpillar, Inc., 17 F.Supp.3d 711, 721-22 (N.D.Ill. 2014). See also Victor Marrero, The Costs of Rules, The Rule of Costs, 37 Cardozo L.Rev. 1599 (2016); Frank H. Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 639 (1989). Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Swanson v. Citibank, N.A., 614 F.3d 400, 411–412 (7th Cir.2010); Continental Insurance. Co. v. Chase Manhattan Mortgage Corp., 59 Fed.Appx. 830, 840 (7th Cir. 2003).

Defendant finally had enough and filed a Motion to Compel on November 9, 2022. [Dkt. #31]. It is remarkable that defendant waited that long to file a motion to compel, and it is a testament to counsel's infinite patience. That it had to be filed is an unfortunate commentary on the way that discovery is all too often conducted in all too many cases, and it makes a mockery of the boast that “trial by ambush” no longer exists and has been replaced by a system of discovery providing each litigant with the ability to obtain full and complete information about the opponent's case. In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 342 (N.D. Ill. 2005). As the preceding history demonstrates, the plaintiff's original deficient responses were provided nearly two months late. Plaintiff then put off defendant for an additional three months. Along the way, defendant graciously agreed to one extension after another. In return, plaintiff's counsel simply ignored defendant's requests for updates a half a dozen times. She even decided, after all but ignoring the defendant's missives and this case for months that another case was suddenly a priority over this one. It is safe to assume the motion for summary judgment she was claimed she was responding to was filed long after her discovery responses in this case were due.

The plaintiff's response to the defendant's Motion to Compel was seemingly contrite, although the only explanation offered for plaintiff's failure to provide discovery responses over the course of nearly six months was that he had “certain moments where he cannot articulate the harm done to him because the recalling the facts cause him so much emotional distress.” [Dkt. #34, at 1]. This, of course, is an empty and hollow excuse and, if accepted, would absolve plaintiff of the discovery obligations imposed on everyone by the Federal Rules of Civil Procedure. In reality, it is no excuse at all and certainly not one recognized by the Federal Rules of Civil Procedure. Plaintiff chose to file this law suit over a year ago and has been delaying participating in discovery for months. Surely, his now claimed “certain moments” did not take up all of that time, or even much of it. It is at best an empty, weak, contrived, and vacuous attempt to avoid the basic responsibility that is imposed on lawyers and litigants alike. In any event, the plaintiff promised – for the umpteenth time – to provide his long overdue completed discovery responses by November 21, 2022, and promised the court that an order on the defendant's motion to compel would be moot as of that date. [Dkt. #34, at 1-2].

Plaintiff's credibility regarding discovery responses being what it is, I chose to enter an Order on the defendant's motion anyway. I made it abundantly clear that the defendant's motion was granted, and that the plaintiff was ordered to provide complete discovery responses no later than November 21st. [Dkt. #36, at 3-4]. I also made it clear, and cited to applicable caselaw, that a failure to do so, after such a lengthy delay, so many false assurances, and so much neglect of discovery responsibilities in this case – including ignoring communications from opposing counsel – would result in my recommending a dismissal of plaintiff's case to Judge Gettleman. [Dkt. #36, at 4]. And I did so even though a lesser sanction than dismissal need not precede a dismissal itself. See, e.g., Halas v. Consumer Servs., Inc., 16 F.3d 161, 165 (7th Cir. 1994)(“It is axiomatic that the district court need not impose a lesser sanction prior to assessing the sanction of dismissal.”); Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir. 1987)(“A district court is not required to fire a warning shot” before imposing the sanction of dismissal).

It is perhaps too self-congratulatory to say that doubting the plaintiff's assurances to the court and issuing an Order turned out to be prescient. After all, given plaintiff's track record in this case, it was unfortunately an easy prediction anyone could have made. Predictably, but unfortunately, the plaintiff's assurance that things would now be different turned out to be, to use Justice Jackson's penetrating prose, “a promise to the ear to be broken to the hope – a teasing illusion like a munificent bequest in a pauper's will.” Edwards v. California, 314 U.S. 160, 186 (1941) (Jackson, J., concurring). The plaintiff provided the defendant with absolutely nothing on November 21st. [Dkt. #38-1]. According to plaintiff's counsel:

Plaintiff [sic] response to the Defendant's Rule 37 correspondence on November 22, 2022 and not November 21st was a mere mistake or inadvertence. Counsel for Plaintiff received a draft of the correspondence from Contract Attorney Dooley on November 21st. Counsel wanted to review prior to submitting to the Defendant. It was not until the morning of November 22nd that counsel realized that she responded to Dooley but never submitted the document to opposing counsel. The document was submitted before noon the next day.

[Dkt. #43, at 5-6]. Clearly, then, even by plaintiff's narrative – which for some reason focuses on “Rule 37 correspondence” instead of plaintiff's discovery responses – the plaintiff failed to comply with the court's Order. And it is this kind of behavior, which, as Judge Bucklo has said in another context, “gives lawyers a bad name.” Schaffner v. Hispanic Housing Development Corp., 76 F.Supp.2d 881, 883 (N.D.Ill.1999).

Plaintiff, not surprisingly, has an excuse – or excuses – all of which ignore the fundamental principle that “[t]alk is cheap,” Planned Parenthood of Indiana and Kentucky v. Box, 949 F.3d 997, 998 (7th Cir. 2019) – and that “unfortunately․ saying so doesn't make it so․” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010).¹ Apart from being inherently incredible, even the narrative plaintiff's counsel provides has nothing to do with mistake or inadvertence.² She didn't forget about a week-old Order detailing her history of delay and requiring completed discovery responses on November 21st. No, apparently, she farmed the work out to someone else who didn't get it back to her until the last day and then she decided to review it the day after that. Compliance with an Order under the threat of dismissal seems too important to delegate your work to someone else. But if that's the decision you make, you must live with the consequences. Hagan v. Quinn, 867 F.3d 816, 820 (7th Cir. 2017); Crowe ex rel. Crowe v. Zeigler Coal Co., 646 F.3d 435, 444 (7th Cir. 2011); Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 644 (7th Cir. 2004); Davis v. City of Chicago, 53 F.3d 801, 803 (7th Cir. 1995).

But, worst of all, again, nothing in plaintiff's excuses and “explanations” has anything to do with the plaintiff's discovery responses, which were what plaintiff was ordered to provide – and which it is his basic nondelegable obligation to provide. Plaintiff is talking about some kind of “Rule 37 correspondence.” The court's Order did not demand more “correspondence” from the plaintiff. Plaintiff's “correspondence,” to date, has been to assure – falsely and repeatedly – that discovery responses were forthcoming. Of course they were not, and those assurances have never been true. The court's Order demanded that plaintiff provide those long overdue discovery responses – documents and interrogatory answers – on November 21st. The court was not interested in “correspondence.” Plaintiff, not suprisingly, did not comply with that very clear Order.³

Under Fed.R.Civ.P. 37(b)(2)(A)(v), “[i]f a party ․ fails to obey an order to provide or permit discovery ․” the court may enter an order “dismissing the action or proceeding in whole or in part ․” Tyagi v. Smith, 790 F. App'x 42, 45 (7th Cir. 2019); Pendell v. City of Peoria, 799 F.3d 916, 917 (7th Cir. 2015)(“․ a court may dismiss a suit after the plaintiff has willfully refused to comply with discovery orders and the plaintiff has been warned that noncompliance may lead to dismissal.”). But, this isn't only about what plaintiff or plaintiff's counsel did or didn't do the week of November 21st. It's not about what the defendant – long-suffering by this time – as the plaintiff puts it “preferred.” It's not even only about plaintiff failing to respond to discovery requests on November 21st when it was ordered to do so by the court.

Dismissal as a sanction here is not only about “the straw that finally broke the camel's back, but all the straws that the recalcitrant party piled on over the course of the lawsuit.” e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 643 (7th Cir.2011). Choose your metaphor: last straw, coffin nail, frosting on the cake, cherry on a sundae, etc. By any cliche, plaintiff's violation of this court's Order came at the end of a long pattern of previous delays and disregard of basic obligations that the plaintiff and his lawyer had.

It began on June 26th when plaintiff's discovery responses were originally due and continued, unrelentingly, for five more months.⁴ Promises were broken, emails were ignored. There was “a clear record of delay.” Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014). This was not a case where “a minor error was quickly remedied.” Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.2000). November 21st was plaintiff's last chance to make good. Plaintiff was clearly warned of the consequences of not doing so. Plaintiff chose to go in another direction. This wasn't just a mistake or carelessness. Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). It was far more than that. “[W]hile district judges should weigh lesser sanctions before dismissing a case, they are not required to ․” Nelson v. Schultz, 878 F.3d 236, 239 (7th Cir. 2017). Nonetheless, I have considered that course here. Would a sanction short of dismissal have been effective? It seems highly unlikely. When a party is ordered to produce long overdue discovery by November 21st, and is warned that failure to produce that discovery would result in dismissal (even though a warning is unnecessary, see, e.g., McInnis v. Duncan, 697 F.3d 661, 665 (7th Cir. 2012)), and then that party does nothing on November 21st, that is strong evidence – to put it mildly – that a lesser sanction would be useless.

Moreover, it is clear from plaintiff's response brief that if he somehow avoids dismissal, he will continue his recalcitrance in discovery. He claims he has produced every email he has and that the defendant is wrong to think there are more. [Dkt. #43, at 8]. Plaintiff also gives every indication that he is going to resist ESI discovery into his social media in order to see if he has, in fact, done what he says. [Dkt. #43, at 8]. But given plaintiff's empty assurances over the last several months, the part of the case where defendant has to take plaintiff's word should be over. For example, plaintiff claims he has no Facebook postings about his employer. [Dkt. # 43-1]. But that is false.

It is undermined by a letter he wrote to the Secretary of IDHS in May 2019 in which he said that he and others were “participants in a Facebook group that was formed out of our frustrations and our desire to one day work in an environment that does not impose constant and continuous mental and psychological pressures on our bodies and minds to the point that we are regularly hoping for and considering an exodus or an avenue of escape which might lead us to a near normal or somewhat pleasant workspace.” [Dkt. #32-8].

Plaintiff tries to explain that away by claiming he “was speaking of a possible Facebook group that some of my colleagues and I was [sic] planning to create” and that it never came to fruition. [Dkt. #43-1](Emphasis supplied). Given the plaintiff's own words in his letter, the Facebook group was underway and ongoing, so that his present excuse simply is not credible.⁵ Again, things like this suggest – rather strongly to say the least – that a lesser sanction would be a waste of time.

The easiest thing for a court to do in these situations – and they come up far too often – is nothing; just allow the guilty party to avoid the sanction of dismissal and go on with their case. That way, the court can honor the preference for deciding claims on the merits, see Sun v. Bd. of Trustees of Univ. of IL, 473 F.3d 799, 811 (7th Cir. 2007), and doesn't have to worry about being overturned. And, after all, what's the harm? But there are two sides to a lawsuit. The defendant in this one has already been through this for months, begging in email after email for the discovery it has been entitled to since June. He was either ignored or got promises that weren't kept. One could perhaps fault the defendant for failing to bring plaintiff's conduct to the court's attention earlier, but defendant was attempting to comply with Local Rule 37.2 and avoid the cost of court having to resolve what should have been a routine discovery matter. Such efforts should be condoned, not punished by consigning the defendant to more of the same down the road.⁶ I recommend the defendant's motion [Dkt. #37] be granted.

ENTERED:

FOOTNOTES

1.   Accord Guerrero v. BNSF Ry. Co., 929 F.3d 926, 929 (7th Cir. 2019); Stromberg Motor Devices Co. v. Zenith Carburetor Co., 254 F. 68, 69 (7th Cir. 1918). Accord Madlock v. WEC Energy Group, Inc., 885 F.3d 465, 473 (7th Cir. 2018); Illinois Republican Party v. Pritzker, 973 F.3d 760, 770 (7th Cir. 2020); Donald J. Trump for President, Inc. v. Secy of Pennsylvania, 830 F. Appx 377, 381 (3d Cir. 2020). Even the Solicitor General's unsupported assertions are not enough. Digital Realty Trust, Inc. v. Somers, _U.S._, 138 S.Ct. 767, 779 (2018).

2.   Plaintiff has added to, or changed, his own excuses for not having participated properly in discovery over the last six months. Originally, he claimed he was distraught over the discrimination he claims to have suffered. But that sort of distress is inherent in every discrimination case and obviously can't be an excuse for refusing to prove the very basis of the offense that is disputed by the defendant. If this excuse were valid a plaintiff would never have to make timely discovery – or any. The argument is not entitled to be called make weight. In his response to the defendant's motion to dismiss, he now tells us that he works from 8:30 to 5:00 pm and, when at home, he cares for his mother who suffered a stroke in August of 2021. As a result of these responsibilities, he speaks with his attorneys at night and on the weekends [Dkt. #43-1], although his attorney's emails suggest that he only began communicating with her in this fashion in October, four months after his responses were due. [Dkt. #38-2, at Page 4/10; #32-7, at Page 4/5]. The demands on plaintiff's time are understandable, and too many of us are unfortunately familiar with the emotional drain and stress of caring for loved ones. But, work doesn't stop for us when things aren't going well and, despite his job and familial responsibilities, plaintiff chose to file suit in November of 2021. Perhaps the timing of that decision, after allegedly suffering discrimination since 2008 [Dkt. #1, Par. 30; #4, Par. 30], was not the best given plaintiff's other claimed responsibilities. Perhaps, given plaintiff's responsibilities, a discussion with opposing counsel regarding a voluntary dismissal under Fed.R.Civ.P. 41(a) was in order.Before filing suit, plaintiff may have had a dreamy vision of the American legal system involving “The Law” and “my day in court” and trials and such. But, even if true, that has absolutely nothing to do with the plaintiff's discovery obligations in this case. And if he did not know that, his lawyer should have told him. The law does not accommodate itself the idiosyncratic thinking or feelings of each individual litigant. But the modern American legal system is mostly about discovery – few cases go to trial as a cursory review of any docket in the courthouse will demonstrate.In this 2021 case, for example, the district court judge has not made a single legal or substantive decision. [Dkt. #11, 13, 15, 39, 41, 42, 45]. The vast majority of the docket entries in this case deal with discovery. And it is safe to say that discovery is not for everyone. To paraphrase Edmund Gwenn, The Law is easy, Discovery is hard. See also Eggleston v. Chicago Journeymen Plumbers’ Loc. Union No. 130, U. A., 657 F.2d 890, 901 (7th Cir. 1981)(discovery is “a runaway train”); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986)(discovery is “a monster on the loose”); Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir. 2000)(discovery is “the bane of modern litigation”).

3.   Apparently, plaintiff provided some manner of discovery responses on November 28th, a few days after the defendant filed its Motion to Dismiss, although it's unclear exactly what those responses consisted of and, based on plaintiff's protestations over producing ESI in plaintiff's response brief [Dkt. #43, at 7-8], remain deficient. Nevertheless, as plaintiff puts it:Plaintiff counsel did work with her team to get Plaintiff's responses submitted in a more formal format and allow the client to review and sign. This was done and submitted on November 28th. While it is not what the Defendant preferred it is not completely noncompliance [sic]with the November 17th Order or what Plaintiff promised the court on November 16th. He responded to the Defendant's Rule 37 correspondence and provided detailed answers and citations to his bate stamped documents.Plaintiff or Plaintiff's counsel did not intentionally submit the response on November 22, 2022, in the format with intentions to disrespect the court's order. It honestly was a mistake and down [sic] in good faith to allow the Plaintiff to submit something in a timely manner. Counsel for Plaintiff could not make changes to a document that he signed prior without [sic] his review and approval.[Dkt. #43, at 6-7].Again, it's simply not clear how failing to comply with the court's clear Order on November 21st as required was a “mistake” or unintentional, or “done in good faith.” Plaintiff seems to think that yet another delay of a week, after a history of delay after delay, failure after failure, is fine because it is merely “not completely noncompliance [sic] with the November 17th Order.” I do not agree. The facts could not be clearer. Plaintiff was ordered to provide discovery on November 21st and chose not to. That is completely noncompliant.

4.   Even after defendant filed its Motion to Dismiss, there was more delay from the plaintiff. Plaintiff was originally given nearly three weeks to respond to defendant's motion to dismiss. [Dkt. #39]. Plaintiff couldn't meet that deadline and couldn't even manage to seek an extension until 4 p.m. on the day the response was due. [Dkt. #40]. Judge Gettleman granted the motion despite those circumstances, see, e.g., Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996)(“When parties wait until the last minute to comply with a deadline, they are playing with fire.”); Royce v. Michael R. Needle P.C., 950 F.3d 939, 947 (7th Cir. 2020)(decrying last-minute requests for extensions), and plaintiff finally responded on December 21, 2022. [Dkt #43].Plaintiff has an explanation for this as well, although it is a bit garbled. Plaintiff claims that “Plaintiff's Most Recent Motion to Dismiss Was Sought to Aid This Court.” [Dkt. #43, at 7]. It seems that what plaintiff's counsel means here is that she chose to ask for more time to respond to defendant's motion to dismiss in order to “to see if the parties could work through the issue prior to the court having to actually rule on the matter.” [Dkt. #43, at 7]. But the court had already ruled on the matter, back on November 17th. Plaintiff and counsel chose not to comply with that ruling.

5.   A long-winded letter to an agency head about a Facebook group posting complaints and discussions about that agency's purported discrimination is exactly the kind of document that courts require before allowing “discovery on discovery.” See, e.g., Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008)(the party seeking further investigation must show “that documents that have been produced permit a reasonable deduction that other documents may exist or did exist.”); Steffan v. Cook Cnty. Sheriff, No. 18 C 8202, 2020 WL 7353411, at *1 (N.D. Ill. Dec. 15, 2020)(“․ courts require that the moving party make out a case for further discovery by showing that the circumstances of the case permit a reasonable deduction that other documents exist, or may have at the time of receipt of the document request.”). A party can't write such a letter, and then later say, “oh, I didn't mean it”, and thereby evade any further discovery into his postings on social media accounts. Nor can a party who has ignored their discovery responsibilities for months, then is ordered to comply fully, come back and say “This is not in violation of Rule 37. Nor is it required in this court.” [Dkt. #43, at 7].

6.   Of course, per Judge Gettleman's minute order of December 19, 2022, the defendant is consigned to go through a third round of briefing [Dkt. ##31, 32, 34, 37, 38, 43, 49] over this long overdue, routine discovery as plaintiff is entitled to file objections and have Judge Gettleman consider the defendant's motion to dismiss de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see also White v. Sloop, 772 F. App'x 334, 337 (7th Cir. 2019)(district judge must conduct de novo review of objected-to portions of report and recommendation and clear error review of non-objected-to portions). Failure to file objections, of course, results in a waiver of those points on appeal. Tumminaro v. Astrue, 671 F.3d 629, 633 (7th Cir. 2011)

Magistrate Judge Jeffrey Cole