Margaret Collins v. State of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3539, 08-1552
M ARGARET J. C OLLINS,
Plaintiff-Appellant,
v.
S TATE OF ILLINOIS, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Central District of Illinois.
No. 03-3159—Richard Mills, Judge.
S UBMITTED D ECEMBER 11, 2008 Œ —D ECIDED F EBRUARY 2, 2009
Before B AUER, R IPPLE, and R OVNER, Circuit Judges.
P ER C URIAM. Margaret Collins, who works at the
Illinois State Library, has long been embroiled in litiga-
Œ
These appeals are successive to case no. 04-2234 and are being
decided under Operating Procedure 6(b) by the same panel.
After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeals are
submitted on the briefs and the record. See F ED . R. A PP . P.
34(a)(2).
2 Nos. 07-3539, 08-1552
tion with her employer, her union, and officials of both.
This is her third lawsuit claiming employment discrim-
ination, and although the district court initially dismissed
it after concluding that Collins’s complaint duplicated
her earlier suits, we detected some new claims and re-
manded the case in part for those claims to be considered.
See Collins v. Illinois, 125 F. App’x 723 (7th Cir. 2005).
Collins, though, walked out of her deposition, so the
district court dismissed her complaint under Federal
Rule of Civil Procedure 37(d)(1) as a sanction for dis-
covery abuse. The court additionally ordered Collins to
pay the union’s costs and attorneys’ fees incurred in
preparing for the deposition. Collins appeals both the
dismissal and the denial of her postjudgment motion to
vacate the order to pay fees and costs. We have consoli-
dated the two appeals.
Things did not go smoothly after our remand in 2005.
Collins was ordered to amend her complaint four times
between then and 2007. In the meantime, the defendants
attempted to commence discovery in April 2006 when
they served Collins with interrogatories. In March 2007,
after Collins had given incomplete answers to the inter-
rogatories and ignored requests for production of docu-
ments, the district court granted the defendants’ motion
to compel her to respond to their discovery requests.
Collins finally answered the interrogatories in June 2007.
Thereafter, the parties struggled to schedule a mutually
acceptable time for Collins’s deposition, and on the defen-
dants’ motion, the court extended the discovery deadline
to September 5, 2007.
Nos. 07-3539, 08-1552 3
In late August 2007, on a date she selected, Collins
appeared for her deposition. When she arrived at the office
where the deposition was to take place, however, Collins
refused to be questioned in the presence of anyone but
lawyers. But the defendants who were present were
entitled to be there, and despite the lawyers’ attempts to
explain this to Collins, she still refused. The union’s
attorney offered to call the magistrate judge to resolve
the dispute, but Collins left before the call could be made.
The next day the defendants moved for dismissal as a
sanction for discovery abuse under Federal Rule of Civil
Procedure 37(d) and requested that Collins be ordered
to pay their related costs and attorneys’ fees. Meanwhile,
Collins filed a motion seeking exclusion of any
non-parties from her future deposition, a larger site for
the deposition, and the use of a court reporter from a
different reporting service. In her motion Collins alleged
that two police officers were sitting in a police car outside
the office when she arrived for her deposition, and she
contended that their presence, as well as the presence of
the individual defendants, was intended to intimidate her.
The district court granted the defendants’ motion after
concluding that Collins’s refusal to be deposed was
“willful and egregious.” The court noted that, although
Collins was proceeding pro se and may have lacked
familiarity with the rules of procedure, she was
informed that the individuals who were present at the
deposition were entitled to be there. The court deter-
mined that her objections to the court reporter and the
police officers outside the building were baseless, and that
4 Nos. 07-3539, 08-1552
her decision to leave before the magistrate judge could be
contacted demonstrated that she “had no intention of
proceeding with the deposition” and was simply “looking
for a reason to avoid being deposed.” Additionally, the
court found that Collins had failed to comply with previ-
ous discovery requests, noting that it had granted the
defendants’ motion to compel and that Collins had not
responded to the interrogatories until nearly one year
after they were served. The court therefore entered judg-
ment in favor of the defendants and ordered Collins to
pay the defendants’ costs and attorneys’ fees incurred
in preparing for the deposition.
Collins filed a motion to reconsider the judgment, which
the district court denied on October 23, 2007. See F ED. R.
C IV. P. 59(e). Collins then filed a notice of appeal challeng-
ing the order of dismissal. The court went on to quantify
the financial sanction and on November 20, ordered
Collins to pay the union $1,575 for its costs and fees.
Collins timely moved for reconsideration of that decision,
arguing that the court had accepted the union’s bill of
costs without giving her an opportunity to respond and
that the court no longer had jurisdiction to enter the
order because she had filed a notice of appeal from the
dismissal of her lawsuit. The district court denied the
motion on December 7, explaining that Collins had not
responded to the union’s submission or requested an
extension of time within 14 days as required under
Local Rule 7.1(B)(1) and further noting that the notice
of appeal did not divest the court of jurisdiction to wrap
up unfinished business such as the awarding of costs
and attorneys’ fees. Collins, not satisfied with this ex-
Nos. 07-3539, 08-1552 5
planation, moved under Federal Rule of Civil Procedure
60(b) to vacate the court’s order. The court denied her
motion on December 21. Collins then filed a second notice
of appeal on January 17, 2008, which is timely only as
to the December 21 decision. We have consolidated the
two appeals for review.
The library defendants have moved for dismissal under
Federal Rule of Appellate Procedure 28, arguing that
Collins has failed to meet the requirements for an
appellate brief. Alternatively, both the library and union
defendants have moved for summary affirmance on the
ground that the arguments in Collins’s brief are “incom-
prehensible or completely insubstantial.” Collins’s brief,
however, substantially complies with Rule 28, see
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001), and
the content of the brief is enough to satisfy us that sum-
mary affirmance is not appropriate in this case, see
United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006).
As we understand her principal argument, Collins
contends that the district court abused its discretion by
dismissing her lawsuit because, in her view, “there was
no clear record of delay, contumacious conduct, or prior
failed sanctions.” She also contends that the court should
have granted her motion to reconsider the $1,575 award
to the union because she did not receive the itemization
of costs and fees until two days after it was filed with
the court electronically, and, therefore, she did not have
a full 14 days to respond before the court ruled. Finally,
Collins argues that the court was biased and failed to
afford her the leniency normally provided to a pro se
litigant.
6 Nos. 07-3539, 08-1552
Although dismissal is a harsh penalty, we review all
discovery sanctions for abuse of discretion and will
uphold a district court’s decision so long as it could be
considered reasonable. In re Thomas Consol. Indus., Inc.,
456 F.3d 719, 724 (7th Cir. 2006); Maynard v. Nygren, 332
F.3d 462, 467 (7th Cir. 2003). Rule 37(d) authorizes dis-
missal as a sanction for a party’s failure to appear for a
deposition after being served with proper notice. See
F ED. R. C IV. P. 37(d)(1)(A)(i); 37(b)(2)(A)(v). We note that
the standard cited by Collins, that an action may be
dismissed only when there is a “clear record of delay
or contumacious conduct, or prior failed sanctions,”
applies when a lawsuit is dismissed for want of prosecu-
tion or failure to comply with orders of the court. See
Maynard, 332 F.3d at 467. But that is not what happened
here, and to dismiss a case as a sanction for discovery
abuse the court must only find that the party’s actions
displayed willfulness, bad faith, or fault. In re Thomas
Consol. Indus., Inc., 456 F.3d at 724; Maynard, 332 F.3d at
468. Once the court makes such a finding, the sanction
imposed must be proportionate to the circumstances.
Maynard v. Nygren, 372 F.3d 890, 892-93 (7th Cir. 2004);
Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996).
The district court’s choice of dismissal was reasonable
given Collins’s willful refusal to be deposed. The court
made an explicit finding that Collins’s conduct was
willful in that she refused to wait until the magistrate
judge could be contacted to address her objections, and
she gave no legitimate reason for walking out of her
deposition. These findings are supported by clear and
convincing evidence. See Negrete v. Nat’l R.R. Passenger
Nos. 07-3539, 08-1552 7
Corp., 547 F.3d 721, 724 n.1 (7th Cir. 2008). Collins was
told that the defendants were entitled to attend the deposi-
tion, and her later objections regarding the court reporter
and the police outside the building are baseless. The
record also reveals a pattern of disregard for discovery
rules including a failure to timely answer interrogatories
and supply documents. Finally, in their request for sanc-
tions, the defendants noted that deposing Collins was
essential to proceed with the case because her com-
plaint was vague and left them uncertain about her
specific claims. Given that Collins had hindered the
progress of her lawsuit during the twenty-eight months
between our remand in March 2005 and her aborted
deposition in August 2007, we perceive no abuse of
discretion in the court’s choice of sanction.
Nor did the district court abuse its discretion when it
denied Collins’s Rule 60(b) motion. See Hicks v. Midwest
Transit, Inc., 531 F.3d 467, 473-74 (7th Cir. 2008). The union
served Collins with an itemized statement of fees and
costs by mailing it to her home address on November 5,
see F ED. R. C IV . P. 5(b)(2)(C), and the record shows
that Collins failed to respond within fourteen days of
service as required by Local Rule 7.1(B). The court there-
fore entered its order awarding the requested costs and
fees on November 20, fifteen days later. Moreover, Collins
contends that litigants who file electronically have an
unfair advantage over those who receive court orders by
regular mail, but this difference does not satisfy the
extraordinary requirements for Rule 60(b) relief, which is
granted only in exceptional circumstances. See Harrington
v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006).
8 Nos. 07-3539, 08-1552
Finally, Collins’s contention that Judge Mills was biased
and that he failed to adequately accommodate her pro se
status lacks merit. We understand this argument as a
challenge to the court’s denial of her motion to recuse
Judge Mills, which Collins filed immediately after our
remand in 2005. In her motion Collins contended that
Judge Mills had rushed to dismiss her case, had never
disclosed his purported relationship to the defendants,
and had displayed prejudice against her and other
African Americans. In denying the motion, Judge Mills
reasoned that Collins’s allegations were unsubstantiated
personal attacks and failed to establish any evidence
of bias.
At the outset we reject Collins’s assertion that Judge
Mills must have been biased because he initially dismissed
her complaint and later required her to amend it four
times. As we have repeatedly held, even pro se litigants
must follow procedural rules, see Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008), and judicial
rulings rarely present a valid basis for a recusal motion,
Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635,
640 (7th Cir. 2002). To the extent that her motion for
recusal was based on 28 U.S.C. § 455(a), which requires
recusal in any proceeding in which a judge’s
impartiality might reasonably be questioned, Collins
failed to pursue her only avenue for review, a pretrial
petition for mandamus. See O’Regan v. Arbitration Forums,
Inc., 246 F.3d 975, 987 (7th Cir. 2001). Nor has Collins
presented any evidence that would lead a reasonable
observer to believe that the judge was incapable of ruling
fairly, as required to establish actual bias under 28 U.S.C.
Nos. 07-3539, 08-1552 9
§ 455(b)(1). See id. at 988; Hook v. McDade, 89 F.3d 350, 355
(7th Cir. 1996).
Accordingly, in both appeals we A FFIRM the decision of
the district court. The motion for summary affirmance
or to strike Collins’s brief is D ENIED.
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