Stewart Davies Plaintiff, v. LoanCare, LLC Defendant Case No. 20-cv-50208 United States District Court, N.D. Illinois, Western Division Filed: June 16, 2022 Schneider, Margaret J., United States Magistrate Judge ORDER *1 Defendant LoanCare, LLC's motion to dismiss and to enter sanctions pursuant to Rule 37 [94], is granted in part and denied in part. By July 7, 2022, Defendant shall file a sworn statement documenting its reasonable fees in connection with the motion to dismiss [94]. Plaintiff Stewart Davies shall file any response by July 21, 2022. Further, the Court has reviewed Plaintiff's Motion to Extend Discovery [121] and the parties’ Joint Status Report [123]. Based on Plaintiff's representations contained in the Joint Status Report, the Court grants Plaintiff's Motion to Extend Discovery in part. The deadline for written discovery is July 21, 2022. The Court will not entertain any further motions to extend written discovery. The parties are directed to file a joint status report by July 22, 2022, advising the Court of any needed oral discovery and proposing deadlines. STATEMENT/OPINION 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. In February 2022, Defendant filed the subject motion to dismiss and for sanctions [94]. On March 7, 2022 (the day Plaintiff's response was due), Plaintiff filed a motion for extension of time to file his response, which the Court granted [97, 98]. On March 9, 2022, Defendant filed another motion for extension of time to file his response [99]. The Court granted Plaintiff a final extension until March 11, 2022, over Defendant's objection [100]. Notwithstanding, on Saturday, March 12, 2022, Plaintiff filed an additional motion for extension of time [101], [102]. On March 13, 2022, Plaintiff filed his response brief [103]. On March 14, 2022, Plaintiff filed his memorandum [104], as well as an additional motion for extension of time [105]. The Court granted Plaintiff's motions for extension of time to the extent that it accepted his dilatory response and memorandum [106]. On March 29, 2022, Defendant filed its reply [107]. This course of conduct is instructive of Plaintiff's conduct throughout this litigation. In the motion, Defendant argues that Plaintiff's claims should be dismissed based on his repeated failures to comply with this Court's discovery orders. Plaintiff responds that Defendant issued him overly burdensome and unnecessary discovery requests that caused the delays in responding to discovery and therefore no sanctions are warranted. Defendant further requests the Court enter an order awarding it reasonable expenses, including attorney's fees, due to Plaintiff's delays and disregard for the Court's orders. BACKGROUND 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]. *2 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 until 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]. 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, extending the fact discovery deadline as well as the deadline for Plaintiff to provide the supplemental responses to November 30, 2021 [72]. 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]. *3 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 had disclosed the discovery as stated in the motion. Id. On February 2, 2022, Defendant filed the subject motion to dismiss and for sanctions [94]. Subsequently, Plaintiff has also filed three additional motions for extension of time to complete discovery [112], [115], [117], which the Court granted [113], [116], [119]. 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 ‘injustifiably resisting discovery.’ ” Tamari v. Bache & Co. (Lebanon) SAL, 729 F.2d 469, 472 (7th Cir. 1984). In addition, they “provide the district court with an effective means of ensuring litigants will timely comply with discovery orders.” Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 670 (7th Cir. 1996). 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). Notwithstanding, a violation of a court order does not need to be in bad faith for sanctions to be imposed. Rather, Rule 37(b) sanctions may be issued in the case of a negligent violation. E360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642-43 (7th Cir. 2011). 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). Under Fed. R. Civ. P. 37(d), if a party fails to serve answers to interrogatories or requests for documents, the court may order payment of “reasonable expenses”, including attorney's fees, caused by the failure unless that failure was “substantially justified” or otherwise “unjust.” Rule 37(d)(3). The party facing the sanctions bears the burden to establish that the failure was substantially justified or harmless or the imposition of sanctions would be unjust. Salgado by Salgado v. Gen. Motors, Corp., 150 F.3d 735, 742 (7th Cir. 1988). The determination of these factors requires courts to consider: (1) the prejudice or surprise caused by the failure, (2) the ability to cure the prejudice, (3) the extent of trial disruption, and (4) the bad faith or willfulness in failing to disclose. Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012). 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). Defendant argues that Plaintiff has had more than enough time to provide complete responses to discovery requests and the record plainly shows that Plaintiff has failed in fulfilling his discovery obligations. Defendant asserts that Plaintiff's failure to cooperate in discovery has frustrated its ability to prepare a defense in this litigation and Plaintiff's conduct demonstrates willfulness and bad faith; thus, Plaintiff's behavior warrants the entrance of an order dismissing the complaint and awarding it attorney fees and costs. Plaintiff responds that Defendant's discovery requests are overly burdensome and unnecessary “busywork”. Further, Plaintiff contends that he has been delayed by Defendant's delay in producing a set of recordings. *4 Plaintiff has failed to abide by the Court's discovery orders by repeatedly failing to meet the Court's deadlines in disclosing or supplementing his discovery responses. However, as the procedural history detailed above shows, although replete with delays and failures to provide discovery in a timely fashion, Plaintiff (at least through his current counsel) has generally attempted to obtain Court ordered continuances of deadlines when failing to meet them. While these excessive continuances were often filed on the last day possible, leaving the Court with little choice but to grant them, they were for the most part granted. These continuances weigh against a finding that Plaintiff violated discovery orders to the extent that a recommendation for Rule 37(b) sanctions is warranted. Therefore, the Court denies Defendant's request for dismissal under Rule 37(b). However, given the procedural history in this case, there are not any circumstances present to justify avoiding a fee award for costs incurred for the filing of the subject motion. Plaintiff cannot dispute that Defendant attempted in good faith to resolve the discovery issues outside of court. See, e.g. Dkt. 95-1, 95-2, 95-3. In addition, there is no adequate explanation for Plaintiff's failure to provide discovery based on genuine disputes making the failure to disclose substantially justified. Instead, he has repeatedly evaded his obligations. Plaintiff's objection, only now, that the discovery requests are overly burdensome “busywork” was never raised in a timely manner. Further, Plaintiff now claims that Defendant is seeking to cause Plaintiff to transcribe recordings provided to Plaintiff by Defendant in response to outstanding interrogatories. However, as Defendant points out, Plaintiff has had these recordings since September 2021. In addition, the recordings are not pivotal to the primary issues on which Plaintiff still owes discovery responses, such as Plaintiff's performance under the terms of the mortgage, how Plaintiff's disability precluded him from making payments on the mortgage, and Plaintiff's alleged damages. Accordingly, there is no good cause to justify Plaintiff's failure to supplement his discovery responses, and no other circumstances that would make an award unjust. While the Court does not find a dismissal suitable at this junction, ordering Plaintiff to pay Defendant's reasonable attorney's fees in connection with this motion is both appropriate and warranted. Plaintiff has been granted numerous chances to comply with his obligations in discovery. Instead, he chose a course of conduct that has been prejudicial and costly to Defendant. Plaintiff's actions have also caused the Court to expend its resources in entertaining excessive extension motions. After review of all the bases for which Plaintiff claims monetary sanctions are warranted, the Court finds that the sanction is best supported under Fed. R. Civ. P. 37(d). Rule 37(d) addresses a party's failure to serve answers to interrogatories or respond to requests. Similar to the other subsections in Rule 37, Rule 37(d)(3) states: “[i]nstead of or in addition to [other sanctions], the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” As noted above, the Court cannot find that Plaintiff's failures are substantially justified or other circumstances would make an award unjust. Defendant's motion is thus granted in part and Plaintiff is ordered to pay Defendant's attorney's fees for time reasonably spent on this motion. As noted above, the Court gives Plaintiff until July 21, 2022, to complete all written discovery. There will be no further extensions. In the event Plaintiff fails to provide Defendant with written discovery by July 21, 2022, the Court will reconsider its order regarding Defendant's request for dismissal pursuant to Fed. R. Civ. P. 37(b). CONCLUSION *5 For the foregoing reasons, Defendant LoanCare, LLC's motion to dismiss and to enter sanctions pursuant to Rule 37 [94], is granted in part and denied in part. By July 7, 2022, Defendant shall file a sworn statement documenting its reasonable fees in connection with the motion to dismiss [94]. Plaintiff Stewart Davies shall file any response by July 21, 2022. Further, the Court has reviewed Plaintiff's Motion to Extend Discovery [121] and the parties’ Joint Status Report [123]. Based on Plaintiff's representations contained in the Joint Status Report, the Court grants Plaintiff's Motion to Extend Discovery in part. The deadline for written discovery is July 21, 2022. The Court will not entertain any further motions to extend written discovery. The parties are directed to file a joint status report by July 22, 2022, advising the Court of any needed oral discovery and proposing deadlines.