Opinion
Case No. 01 C 5520
August 11, 2003
THERESA A. STEWART, Pro Se Plaintiff
DEBORAH J. ALLEN, Esq., Office of the Attorney General, Attorney for Defendant
REPORT AND RECOMMENDATION
This case is before the Court on Defendant's motion to dismiss this action as a sanction for Plaintiff's failure to appear, for a second time, for her deposition. Defendant also moves the Court to dismiss this action for want of prosecution. For the reasons set forth below, the Court finds that Defendant's motions should be granted.
This matter comes before this Court pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.1 for a report and recommendation.
I. Background
Plaintiff Theresa Stewart brought suit against Defendant Illinois Department of Corrections, alleging that she was sexually harassed while employed by the Defendant as a correctional officer at Stateville Correctional Center. Plaintiff is proceeding pro se.On May 28, 2003, Plaintiff failed to appear for a scheduled deposition and did not notify Defendant's attorney that she was unable to appear for the deposition. On June 20, 2003, this Court sanctioned Plaintiff and ordered her to pay $120.00 for her failure to appear for the deposition, as that was the amount of costs incurred by Defendant's attorneys for the court reporter. We further ordered Plaintiff to appear at the offices of Defendant's attorney and give her deposition on July 23, 2003. Defendant sent Plaintiff a notice of deposition for that same date. Plaintiff again failed to appear.
On July 31, 2003, this Court held a status hearing. Plaintiff failed to appear. On August 5, 2003, due notice having been given, this Court heard argument on Defendant's motion to dismiss as a sanction and motion to dismiss for failure to prosecute. Plaintiff failed to appear. At the hearing, Defendant asked the Court for the unknown costs it incurred as court reporter's fees for the July 23rd scheduled deposition.
II. Discussion
A. Motion to Dismiss as Sanctions
Under Federal Rule of Civil Procedure 37, the court may impose sanctions for abuse of the discovery process. The sanctions imposed may include the dismissal of a case, but "considering the severe and punitive nature of dismissal as a discovery sanction, a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case." Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003). This standard has been met in this case.
Plaintiff twice failed to appear for her deposition. In the most recent instance, Plaintiff was present in court (June 20, 2003, the last time she appeared) when we ordered her to appear for her deposition on July 23, 2003. Plaintiff gave no indication on that date that she would be unable to appear, nor did she subsequently inform Defendant that she would not appear on that date. Her failure to appear was willful and in bad faith. Lesser monetary sanctions have failed to work as demonstrated by the ineffectiveness of the monetary sanction for her failure to appear for the first deposition. For these reasons, we recommend that Plaintiff be sanctioned in the amount of $125.00 for the court reporter's fees, and we recommend that Defendant's motion to dismiss as sanctions for Plaintiff's failure to appear for her deposition be granted.
B. Motion to Dismiss for Want of Prosecution
Under Federal Rule of Civil Procedure 41, the court may dismiss an action for failure of the plaintiff to prosecute or to comply with the rules or the court's orders. Dismissal of a case "is one of the tools available to district courts "to achieve the orderly and expeditious disposition of cases.'" Williams v. Chic. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) ( quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). However, because dismissal is such a harsh sanction, it "should be used `only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.'" Id (quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir. 1998) (citations omitted)).
Plaintiff's actions cause us to reach the conclusion that this case should be dismissed for failure to prosecute. Plaintiff has failed to appear for the last two scheduled court dates. She twice failed to appear for her scheduled deposition, even when ordered to by this Court. Monetary sanctions have failed to work. For these reasons, we recommend that Defendant's motion to dismiss for want of prosecution be granted.
III. Conclusion
For the reasons discussed above, the Court concludes that Plaintiff should be sanctioned in the amount of $125.00 and that this case should be dismissed with prejudice as a sanction for her failure to appear for her deposition. In the alternative, the Court recommends that Defendant's motion to dismiss for want of prosecution be granted.