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George Hildebrandt, Jr. and Patricia Hildebrandt v. Tom Vilsack

November 6, 2012


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on the defendants' motion for sanctions against the plaintiffs, along with the defendants' motion to strike a "notice of filing" submitted by the plaintiffs shortly after the filing of their memorandum opposing the motion for sanctions. The defendants seek dismissal of this case (or, in the alternative, other severe sanctions) due to the plaintiffs' failure to obey a discovery order, along with other conduct by the plaintiffs that the defendants contend has protracted this action and forced them to expend time and resources. The defendants also maintain that the plaintiffs' notice of filing violates the local rules of this Court.

Upon consideration of the parties' submissions, the relevant legal authorities, and the entire record in this case, the Court will deny the defendants' motion to strike, and it will grant in part and deny in part the defendants' motion for sanctions.*fn2


Plaintiffs George and Patricia Hildebrandt brought this action against the defendants under the Equal Credit Opportunity Act of 1972 ("ECOA"), 15 U.S.C. § 1691, claiming that they have been discriminated against because of their race. See Second Amended Complaint [Dkt. No. 33-2]. The plaintiffs originally were represented in this action by attorney James W. Myart, Jr., who was counsel for the Hildebrandts until January 2008, after Mr. Myart's application to renew his membership in the bar of this Court was rejected.

The defendants served their first set of interrogatories and requests for production on the plaintiffs in July 2006, in accordance with the Court's Scheduling Order. Mem. at 2-3. The plaintiffs did not respond within the thirty-day deadline established by the Scheduling Order, and only after being reminded by the defendants of this missed deadline did they supply their responses, eleven days late. Id. at 3. The defendants found the plaintiffs' responses to the discovery requests to be inadequate: the plaintiffs answered only one of the defendants' nineteen interrogatories and responded to only one of the twenty-nine requests for production; the plaintiffs' lone interrogatory response, moreover, did not address the matters inquired about in the interrogatory. Id. at 3. The defendants promptly sent a letter to plaintiffs' counsel detailing the deficiencies in the plaintiffs' responses, and offering the plaintiffs additional time to supplement them. That time came and went without the plaintiffs furnishing the requested materials or responding to the defendants' attempts to confer telephonically with their counsel about the matter. Id. at 4-5; see id., Exhs. 1-8.

Having received nothing from the plaintiffs, and being unwilling to allow more time for compliance in view of the plaintiffs' non-responsiveness, the defendants filed an expedited request for a teleconference to discuss the impasse. See Docket No. 58. This case subsequently was referred to Magistrate Judge John Facciola for the management of discovery. See Referral Order (Oct. 11, 2006). After receiving submissions from the parties and conducting proceedings in early December of 2006, Magistrate Judge Facciola issued an Order on December 22, 2006, directing plaintiffs' counsel, by January 5, 2007, to supplement the deficient interrogatory responses and to correlate each document that had been provided in response to the defendants' production requests with the appropriate request. Order ¶¶ 3-4, 7 (Dec. 22, 2006).

The January 5 deadline passed, once again, with nothing forthcoming from the plaintiffs. After an additional week went by with still no word from the plaintiffs, the defendants filed a motion for sanctions. See Docket No. 63. Plaintiffs' counsel obtained two extensions of time in which to respond to this motion. See Minute Order (Jan. 23, 2007); Minute Order (Feb. 2, 2007). Counsel then sought a third extension, which - for the first time - also requested an extension of time in which to supply the plaintiffs' still-outstanding discovery responses. See Docket No. 68. Magistrate Judge Facciola granted this motion and set February 23, 2007, as the deadline for delivery of the plaintiffs' supplemental discovery responses. See Minute Order (Feb. 16, 2007).

Late in the day on February 22, 2007, plaintiffs' attorney, Mr. Myart, attempted but failed to ship the outstanding discovery materials to the defendants via overnight shipping. Although Mr. Myart faxed the plaintiffs' supplemental interrogatory responses to the defendants on that date, the remainder of the discovery materials was not shipped until February 23. Because these materials would not reach the defendants by the court-ordered deadline - that same day - Mr. Myart filed an "emergency motion" to further enlarge the time in which to deliver discovery to the defendants. See Docket No. 69. The materials ultimately arrived on February 26, and on February 27 the Magistrate Judge issued a Minute Order granting the plaintiffs' emergency motion nunc pro tunc. A separate Minute Order issued that same day observed that the plaintiffs now appeared to have complied with the Court's discovery deadlines. Minute Order (Feb. 27, 2007).

Briefing continued on the defendants' motion for sanctions, however, and in a September 2007 opinion Magistrate Judge Facciola vacated his extension of the January 5, 2007 deadline by which the plaintiffs were supposed to have supplied their supplemental discovery materials. Judge Facciola explained that because the plaintiffs did not request an extension until after the deadline had already passed, under the Federal Rules of Civil Procedure their request "had to be accompanied by a motion establishing that the failure to act in accordance with the deadlines was 'the result of excusable neglect.'" Memorandum Opinion at 3 (Sept. 11, 2007) (quoting Fed. R. Civ. P. 6(b)). The Magistrate Judge ruled that for the plaintiffs to be considered in compliance with the December 2006 discovery order, they would need to submit a motion for leave to file that established "excusable neglect" for the missed deadline. Id. at 4. The plaintiffs were given a deadline of October 1, 2007, for any such motion. In the meantime, Judge Facciola denied without prejudice the defendants' motion for sanctions. Id.

At this point in the case, a series of extensions and stays ensued, driven at first by motions for continuances filed by Mr. Myart in which he claimed that medical incapacitation temporarily prevented him from continuing with the case. See, e.g., Docket Nos. 78, 87. Magistrate Judge Facciola ultimately extended the deadline for the plaintiffs' motion for leave to file until early December 2007. See Minute Order (Nov. 13, 2007). The plaintiffs through counsel sought to extend this new deadline, again based on considerations relating solely to Mr. Myart. See Docket No. 95. By the time of this request, however, Mr. Myart's application to renew his membership in the bar of this Court had been denied.*fn3 The Magistrate Judge therefore extended the deadline for the plaintiffs' motion to February 22, 2008, "so as to provide plaintiffs with an opportunity to obtain new counsel[.]" Memorandum Order at 2 (Jan. 11, 2008). The plaintiffs were advised that their failure to comply with this deadline might result in the dismissal of their case. Id. At the Court's direction, a copy of this Memorandum Order was mailed directly to the plaintiffs.

The plaintiffs then wrote to the Magistrate Judge and described the problems they had experienced with Mr. Myart, including his inattention to their case and his lack of communication with them. See Docket No. 102. In light of their difficulties securing replacement counsel, the Magistrate Judge extended the deadline for their motion three times. See Minute Order (Feb. 21, 2008); Minute Order (Mar. 28, 2008); Minute Order (May 12, 2008). The plaintiffs subsequently found replacement counsel, who obtained an extension of the deadline until June 30, 2008. See Docket Nos. 108, 109; Minute Order (May 28, 2008). What the plaintiffs ultimately submitted on that day, however, through their new counsel, was not a motion establishing excusable neglect under Rule 6(b) for the failure to timely comply with the December 2006 discovery order. Rather, the document was an opposition to the defendants' motion for dismissal or other sanctions, which the Magistrate Judge already had denied without prejudice while awaiting the plaintiffs' excusable neglect motion. See Plaintiffs' Opposition to Defendants' Motion for Dismissal or Other Sanctions (Jun. 30, 2008) [Dkt. No. 111]. Although this opposition memorandum argued as a general matter that the plaintiffs should not be held accountable for the misdeeds of Mr. Myart, see id., the Magistrate Judge observed: "At no point do the plaintiffs reference Rule 6(b), excusable neglect, or in any other way comply with the Court's specific instructions." Memorandum Order at 2 (Sept. 24, 2008). The Magistrate Judge therefore held that the plaintiffs had failed to comply with the December 2006 discovery order, and granted the defendants leave to re-file their motion for sanctions. Id. at 3. The defendants subsequently renewed their motion, and the plaintiffs filed an opposition through counsel, to which the defendants replied.


A. Motion to ...

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