Monika Salata v. Weyerhaeuser Company ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3136
MONIKA SALATA,
Plaintiff-Appellant,
v.
WEYERHAEUSER COMPANY,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 2187 — James B. Zagel, Judge.
ARGUED JUNE 6, 2014 — DECIDED JULY 7, 2014
Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. This case stems from a personal injury
action brought by Monika Salata (“Salata”) against Weyer-
haeuser Company (“Weyerhaeuser”). After Salata repeatedly
failed to comply with discovery orders, the district court
dismissed her case with prejudice for failure to prosecute.
Salata moved to reinstate, but the court denied her motion.
Salata now appeals and argues that the district court abused its
discretion when it granted Weyerhaeuser’s Motion to Dismiss
2 No. 13-3136
and denied her Motion to Reinstate. We find no abuse of
discretion, and affirm the district court’s order.
I. BACKGROUND
On March 28, 2008, while Salata was cleaning a property
owned by Weyerhaeuser, she slipped and fell, claiming loose
floor tiles were the culprit. On March 8, 2010, Salata filed suit
against Weyerhaeuser in the Circuit Court of Kane County,
Illinois, alleging that as a result of the slip and fall, she
was “severely and permanently injured, requiring her to incur
medical expenses, disability, pain and suffering, loss of normal
life and wage loss on an ongoing and permanent basis.”
Weyerhaeuser removed the case to federal court. The parties
attempted voluntary mediation, but when they could not reach
a settlement, Salata’s then-attorneys, Whiting Law Group, Ltd.
(“Whiting”) and Schweickert & Ganassin, LLP (“Schweickert”),
moved to withdraw, citing irreconcilable differences. The
district court allowed Whiting and Schweickert to withdraw,
and Salata’s current counsel, Naderh Elrabadi (“Elrabadi”) of
Santilli Law Group, took over on March 14, 2012. At a status
hearing on April 4, 2012, Elrabadi stated that she needed
additional time to conduct fact discovery, so the court ex-
tended the discovery deadline until May 23, 2012. On April 6,
2012, Weyerhaeuser sent an e-mail to Elrabadi, explaining
that Salata’s responses to their first set of interrogatories
were incomplete. In the e-mail, Weyerhaeuser asked Salata to
supplement those responses and to provide overdue responses
to their second set of interrogatories. (Salata responded to
Weyerhaeuser’s first set of interrogatories on October 18, 2010,
but provided insufficient responses to numbers 9, 11, 12, 13, 16,
and 20. Weyerhaeuser’s second set of interrogatories was
No. 13-3136 3
initially served on Salata on February 20, 2012; she failed to
respond to these interrogatories at all. The first set of interroga-
tories related to Salata’s injuries, claimed damages, prior
injuries, and prior litigation, while the second set of interroga-
tories focused primarily on Salata’s income and her ability to
work after the accident.) When Weyerhaeuser received no
response from Elrabadi, it sent her another e-mail on April 13,
2012, and attached copies of the interrogatories; again, Elrabadi
did not respond.
On August 14, 2012, Weyerhaeuser sent an e-mail to Elra-
badi, stating, “If we do not hear from you by tomorrow, we
will assume that you are refusing to respond to the supplemen-
tal discovery and we will have no choice but to file a Motion to
Compel.” When they received no response from Elrabadi,
Weyerhaeuser filed a Motion to Compel on November 14,
2012. At this point, discovery had been outstanding for ten
months. The court granted Weyerhaeuser’s Motion to Compel,
but at Elrabadi’s request, allowed her six more weeks to
compile the outstanding discovery. The court ordered Salata to
answer all outstanding written discovery by January 2, 2013,
and set a status hearing for January 31, 2013.
Salata failed to produce any supplemental discovery to
Weyerhaeuser by the court-ordered deadline of January 2,
2013, and Elrabadi failed to appear at the status hearing on
January 31, 2013. On February 26, 2013, Weyerhaeuser moved
to dismiss the case due to Salata’s failure to comply with the
court’s discovery order under Federal Rule of Civil Procedure
37, as well as for a want of prosecution under Rule 41(b);
Weyerhaeuser also requested attorney’s fees related to the
preparation of their Motion to Dismiss as well as their Motion
4 No. 13-3136
to Compel. On March 12, 2013, the court held a hearing on
Weyerhaeuser’s Motion to Dismiss; again, Elrabadi failed to
appear. Though the court declined to impose sanctions, it
dismissed the case with prejudice for want of prosecution.
On May 9, 2013, Elrabadi filed a Motion to Reinstate,
claiming that she had not been given notice of the March 12,
2013, court date and asserting that Salata had “fully answered
all outstanding written discovery with the exception of her
income tax records … .” On May 16, 2013, the court ordered
Weyerhaeuser to respond to Salata’s Motion to Reinstate, and
indicated that it was inclined to allow reinstatement of the
case. In its June 10, 2013, response, Weyerhaeuser asked the
court to deny Salata’s motion. It explained that Salata had still
“not provided any information of any kind … in response to
[their] discovery requests,” and that Salata “continues … to be
in violation of this Court’s November 27, 2012 order.” On
June 17, 2012, the court ordered Salata to supplement dis-
covery. On July 15, 2013, Salata did submit supplemental
responses to Weyerhaeuser’s first set of interrogatories, but
still did not respond at all to Weyerhaeuser’s second set of
interrogatories. In their August 28, 2013, Sur-Response,
Weyerhaeuser explained that Salata’s untimely supplemental
responses had not cured the discovery issues, but instead
“raise more questions than they answer and demonstrate that
if this litigation were to go forward, there is a tremendous
amount of discovery still left to be conducted based on these
new revelations that come three years into this litigation and
after Plaintiff’s case has been dismissed … .”(For example, in
Salata’s deposition on December 8, 2010, she stated that she
had been able to do “zero work” since the slip and fall on
No. 13-3136 5
March 28, 2008. However, in the supplemental responses she
provided to Weyerhaeuser in June 2013, Salata indicated that
she had earned over $22,000 in 2008 and over $12,000 working
as an office clerk in 2009.)
At an August 30, 2013, status hearing, the court denied
Salata’s Motion to Reinstate, explaining that it was just “too
late to complete [discovery]” and that “the damage was done
because of the lateness.” Salata now appeals the court’s denial
of her Motion to Reinstate the case.
II. DISCUSSION
A. The Court’s Decision to Dismiss Salata’s Case with
Prejudice
We review a district court’s decision to grant a Motion to
Dismiss for abuse of discretion, Maynard v. Nygren, 332 F.3d
462, 467 (7th Cir. 2003), and will uphold “any exercise of the
district court’s discretion that could be considered reasonable,
even if we might have resolved the question differently.” Id.The district court’s decision must strike this court as “funda-
mentally wrong” for an abuse of discretion to occur. Johnson v.
J.B. Hunt Transp. Inc., 280 F.3d 1125, 1131 (7th Cir. 2002).
A court may dismiss an action with prejudice “if the
plaintiff fails to prosecute or to comply with [the Federal Rules
of Civil Procedure] or any court order.” Fed. R. Civ. P. 41(b).
The court should exercise this right sparingly and should
dismiss a case under Rule 41 only “when there is a clear record
of delay or contumacious conduct, or when other less drastic
sanctions have proven unavailing.” Webber v. Eye Corp., 721
F.2d 1067, 1069 (7th Cir. 1983). “Although dismissal is a harsh
6 No. 13-3136
sanction that should be imposed infrequently, we recognize
that the power to sanction through dismissal is essential to
the district courts’ ability to manage efficiently their heavy
caseloads and thus protect the interests of all litigants.” Roland
v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1177–78 (7th Cir.
1987).
In Roland, we concluded that the district court did not abuse
its discretion when it dismissed plaintiffs’ complaint after the
plaintiffs had committed ongoing discovery violations. Id. at
1180. Plaintiffs failed to respond to interrogatories and produc-
tion requests, so defendants filed a Motion to Dismiss. Id. at
1176. Initially, the court denied the motion and granted
plaintiffs additional time to respond. Id. However, when
plaintiffs failed to produce discovery responses by the court-
ordered discovery deadline, the court granted defendants’
Motion to Dismiss and awarded defendants attorney’s fees,
specifically finding that plaintiffs had “acted willfully, deliber-
ately, and in bad faith” in failing to comply with discovery
orders. Id.The facts in this case bear a striking resemblance to those in
Roland. Here, the court extended discovery deadlines multiple
times to give Salata additional time to respond to discovery
requests. Weyerhaeuser’s counsel reached out repeatedly to
Elrabadi and attempted to resolve outstanding discovery
disputes without court intervention, but when they received no
response, they were forced to bring a Motion to Compel. The
court granted Weyerhaeuser’s motion and ordered Salata to
produce all outstanding written discovery by January 2, 2013.
This deadline, however, came and went and Salata failed to
produce the outstanding discovery, even though Elrabadi had
No. 13-3136 7
previously informed the court that she was working to compile
it. Elrabadi asserts that Salata had fully complied with all
of Weyerhaeuser’s discovery requests at this point, but the
record tells a different story. As of January 2, 2103, Salata had
not answered six of Weyerhaeuser’s first set of interrogatories,
failed to respond at all to Weyerhaeuser’s second set of inter-
rogatories, and failed to produce material documents, includ-
ing medical reports, bills, and tax returns. Not until more than
four months after the court dismissed her case for failure
to prosecute did Salata finally produce some outstanding
discovery responses, but at this point it was just too late.
In her brief, Elrabadi tries to excuse her failure to respond
to Weyerhaeuser’s motions and her failure to appear at status
hearings by claiming that she never received notice of the
status hearings or copies of Weyerhaeuser’s motions. Elrabadi,
however, is registered with the court’s CM/ECF system. Copies
of all motions and notices of all status hearings were sent to
Elrabadi through the district court’s E-Filer system at her
registered e-mail address. The Northern District of Illinois’
General Order 09-014 Section IV(C) makes clear that
”[r]egistration as an E-Filer constitutes consent to electronic
service of all documents.” Section IV(G) continues, “It is the
responsibility of the E-Filer to maintain … a current and active
e-mail address. The E-Filer shall promptly notify the Clerk of
the Court and opposing litigants in pending cases of any
changes in the E-Filer’s e-mail address.” If Elrabadi was
unaware of hearings and motions because the e-mail address
she had on file with the court was no longer current, her
ignorance of the docket was “nothing but negligence” and does
8 No. 13-3136
not constitute “excusable neglect.” Norgaard v. DePuy Orthopae-
dics, Inc., 121 F.3d 1074, 1075 (7th Cir. 1997).
In Harrington v. City of Chicago, we found that a plaintiff’s
failure to appear for court dates, to disclose material docu-
ments, and to respond to written discovery “comprise[d] a
sufficient record of delay” and constituted “more than enough
[] to dismiss the case for want of prosecution.” 433 F.3d 542,
550 (7th Cir. 2006).
In Martinez v. City of Chicago, we affirmed the district
court’s decision to dismiss a case for failure to prosecute based
on the “clear pattern of delay” evinced by the plaintiff’s
attorney. 499 F.3d 721, 727 (7th Cir. 2007). The plaintiff’s
lawyer had failed to attend three status hearings, filed plead-
ings after court-ordered deadlines, and failed to turn over
discovery materials even after promising to do so. Id. at 722–23.
We explained that “[e]ven giving [plaintiff] the benefit of every
doubt … she cannot demonstrate that the district court abused
its discretion [when it dismissed her case for failure to prose-
cute] … .” Id. at 727.
In this case, Elrabadi’s failure to appear at multiple status
hearings and Salata’s ongoing failure to provide outstanding
discovery to Weyerhaeuser even after being compelled by the
court to do so provided the district court with more than
enough reason to dismiss Salata’s case for failure to prosecute.
The “pattern of delay and indifference” evinced by Salata and
her counsel strongly supports the district court’s dismissal, and
we find no abuse of discretion. Ryer v. Russell, 974 F.2d 1340, *3
(7th Cir. 1992).
No. 13-3136 9
B. Weyerhaeuser’s Request for Attorney’s Fees
Weyerhaeuser also requests attorney’s fees for costs
incurred as a result of defending a frivolous appeal under
Federal Rule of Appellate Procedure 38. Rule 38 allows us to
impose sanctions against an appellant or an appellant’s
attorney. Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192, 1201
(7th Cir. 1987). These sanctions serve to compensate parties
“for the expense and delay of defending against meritless
arguments in the court of appeals” and “to deter [meritless]
appeals and thus preserve the appellate court calendar for
cases worthy of consideration.” Ruderer v. Fines, 614 F.2d 1128,
1132 (7th Cir. 1980). Rule 38 should not be invoked lightly.
Goyal v. Gas Technology Institute, 732 F.3d 821, 823 (7th Cir.
2013).
In order to impose sanctions under Rule 38, we must
determine that (1) the appeal is frivolous and (2) sanctions are
appropriate. Bowman v. City of Franklin, 980 F.2d 1104, 1110
(7th Cir. 1992). “An appeal is frivolous when the result is
obvious or when the appellant’s argument is wholly without
merit.” Indianapolis Colts v. Mayor and City Council of Baltimore,
775 F.2d 177, 184 (7th Cir. 1985). Even if we determine that the
appeal is frivolous, however, Rule 38 is “permissive,” and we
may “decline to impose sanctions.” Indep. Lift Truck Builders
Union v. Nacco Materials Handling Group, Inc., 202 F.3d 965, 969
(7th Cir. 2000). “How we exercise [our] discretion may turn on
our perception of whether an appellant acted in bad faith.”
Berwick Grain Co., Inc. v. Ill. Dep’t of Agric., 217 F.3d 502, 505
(7th Cir. 2000). We usually look for some suggestion that the
“appeal was prosecuted with no reasonable expectation of
altering the district court’s judgment and for purposes of delay
10 No. 13-3136
or harassment or out of sheer obstinacy.” Reid v. United States,
715 F.2d 1148, 1155 (7th Cir. 1983).
Though it should have been obvious that we would affirm
the district court’s decision to dismiss Salata’s case since she
repeatedly failed to supplement discovery and to comply with
court orders, we decline to impose sanctions on Salata or her
counsel under Rule 38. Though Elrabadi’s professionalism may
surely be called into question, we find the evidence in the
record insufficient to support a finding that Salata or her
counsel, Elrabadi, acted in bad faith or intentionally delayed
court proceedings. Salata did change counsel early on in the
discovery process, leading to some issues with her interroga-
tory responses, and the district court noted that Salata’s
language difficulties may have played a role as well. Since
Rule 38 sanctions are permissive, we exercise our discretion
not to impose sanctions on Salata or Elrabadi here.
III. CONCLUSION
We AFFIRM the district court’s decision to dismiss Salata’s
case and to deny her Motion to Reinstate and decline to impose
sanctions on Salata or her counsel.