G&G Closed Circuit Events, LLC v. Castillo
| Decision Date | 30 June 2016 |
| Docket Number | No. 14 C 2073,14 C 2073 |
| Parties | G & G CLOSED CIRCUIT EVENTS, LLC, Plaintiff, v. JAMES F. CASTILLO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
The plaintiff, G&G Closed Circuit Events, LLC ("G&G"), has filed a motion to exclude well over sixty witnesses first revealed by the defendants, Jaime and Maria Castillo, on February 8, 2016, just three weeks before the close of discovery. Although this supplementation of the Castillos' initial disclosures was made before the discovery deadline, given its massive scope, it was clearly late and prejudicial, as well - for the most part. As a result, G&G's motion must be granted, but not as to the ten witnesses that G&G was given extra time to depose.
"A guy walks into a bar" is the hackneyed opening to countless jokes, but that's how this case began and, over the last two years, it has been anything but funny. A guy did walk into a bar/restaurant and asked the proprietor to put a boxing match on the televison. Since then, things have escalated to what might be described as epic proportions, with that proprietor and his attorney attempting to fashion what they seem to hope will be a nationwide, class-action conspiracy case. Whether there may be the makings of such a case is open to question, but as things proceed, it becomes clearer and clearer that they - or at least, counsel - may be trying to punch well above their weight class.
On April 20, 2013, Austin Trout and Saul "Canelo" Alvarez were fighting for the WBA and WBC light middleweight titles. The plaintiff, G&G, a commercial distributor of sporting events, had purchased the exclusive nationwide television distribution rights to the bout. G&G, in turn, sublicensed the right to show the fight publicly to businesses like hotels and taverns. It claims that the defendants in this case, Jaime and Maria Castillo, showed the telecast of the fight to their patrons at their restaurant on the northwest side of Chicago without authorization. G&G brought suit against the defendants under the Communications Act, 47 U.S.C. §605, and the Cable & Television Consumer Protection Act, 47 U.S.C. §553, on March 25, 2014. It asked for statutory damages in the neighborhood of $300,000.
The defendants responded with a counterclaim against G&G [Dkt. #15], charging G&G with common law fraud and violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFDTPA"), 815 ILCS 505/1 et seq. The counterclaim alleged that G&G has been filing a number of these cases and seemed to be targeting small businesses whose owners may not speak English as their native language. In the case of the Castilllos, the counterclaim alleges that an attorney working for G&G sent Jaime Castillo a letter charging him with unauthorized distribution of the telecast of the boxing match. Mr. Castillo called the attorney's office a couple of times and finally got an appointment, at which time the attorney said he knew he was guilty and he should settle, demanding $20,000. Mr. Castillo said they would have to go to court, and here they are.
G&G quickly filed a motion to dismiss the counterclaim. On March 5, 2015, the District Court Judge ruled that the Castillos' counterclaim failed to adequately allege a claim for commonlaw fraud - they hadn't pled reliance - but allowed their claim under the ICFDTPA to stand. [Dkt. #27, 28]. A week after the District Court Judge's ruling, the Castillos sought leave to file a first amended counterclaim, along with a motion to certify a class. [Dkt. #30, 31]. When the motions were before the District Court Judge, the Castillos withdrew the first amended class counterclaim, indicating that they would be filing a motion for leave to file a second amended counterclaim. The District Court Judge gave them until April 7, 2015 to do that. Acknowledging the motion to certify a class, the Judge said that:
[c]onsideration of the motion would be premature as this time. Accordingly, the court asks that the parties consider entering into a stipulation that would obviate the need to address the premature motion for class certification, while also addressing the mootness concerns raised in Damasco [v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011)].
[Dkt. # 34]. The deadline for the Castillos to file a second amended counterclaim passed with the Castillos doing nothing, and the Judge gave G&G until April 29, 2015, to answer Count II of the counterclaim, which it did. [Dkt. #35, 36].
On May 13, 2015, the parties informed the District Court Judge they were unable to reach the class certification/Damasco stipulation she desired. As such, she denied the Castillos' motion for class certification without prejudice, "with the understanding that the counter-plaintiff's request for class certification remains pending as a placeholder and no rights are waived." [Dkt. #38]. The Judge referred the matter to me for discovery supervision and any settlement conference. [Dkt. #38].
On June 9, 2015, the parties filed an agreed proposed scheduling order, in which they set a deadline for the close of fact discovery: October 1, 2015. The parties would submit their Fed.R.Civ.P. 26(a)(1) disclosures by June 30, 2015, and would amend pleadings on or before September 1, 2015. [Dkt. #44].
The Castillos filed a motion for leave to file a first amended class action counterclaim on July 15, 2015. The District Court Judge granted that motion and set a briefing schedule for G&G's motion to dismiss, which was in the offing. [Dkt. #47]. Once the Castillos filed their class action counterclaim, the parties appeared before me and reported that they had suspended all discovery pending the Judge's resolution of G&G 's motion to dismiss. [Dkt. #49]. The motion to dismiss hadn't even been filed, let alone briefed. So the parties seemed to have planned among themselves a little vacation from discovery that would last for months. I allowed discovery deadlines to be stricken with the idea that new dates would be set after the District Court Judge ruled. But, by no means would the parties be allowed to take their extended holiday from this case - discovery would proceed. [Dkt. #49]. G&G then filed its motion to dismiss on August 19, 2016. [Dkt. #50].
When the parties were before me on September 15, 2015, it was clear discovery wasn't going well. Each side had multiple issues with the other side's participation, and after resolving a number of those, I reminded the parties that there were consequences for unjustified non-compliance. [Dkt. # 53]. The problems continued, including issues with compliance with the Castillos' third-party subpoenas. [Dkt. #62, 64]. When the parties were before me on November 2, 2015, things hadn't improved much. It was clear that the lack of any deadline wasn't helping matters. An endless horizon does not inspire pragmatism - or, it seemed, cooperation. Accordingly, I asked to parties to select a new discovery deadline. They balked, and finally G&G's counsel suggested March 1, 2016. The Castillos' counsel said she was "fine" with entering that date. Given her insouciance, I warned her that, come that time, she should not assume it would simply be extended. And so, March 1, 2016, was written in stone - or at least, written. [Dkt. #61].
Then, the Castillos filed a motion to compel G&G's response to interrogatories and forsanctions. [Dkt. #66]. At the hearing on that motion, it became all the more apparent that the parties were not complying in good faith with Local Rule 37.2. The Castillos' Local Rule 37.2 certification referred only to "efforts and . . . letters and emails" [Dkt. #67, at 11-12], although counsel did assert that she tried to contact opposing counsel by phone and was brushed off. [Dkt. #67, at 5]. Unable to get an accurate picture of what happened, I ordered the parties "to have an immediate face-to-face Rule 37.2 conference and provide a joint certification of their efforts . . . [which had to] comply with the procedure set forth in Autotech Tech. Ltd. Partnership v. Automationdirect.Com, Inc., 2007 WL 2713352, at *4 (N.D.Ill. 2007)." [Dkt. #69]. The next day, the Castillos filed an amended motion to compel compliance with their discovery requests. [Dkt. #70].
According to the parties' certification, in just about an hour, they were able to resolve a number of differences. Clearly in the time that went by before they had been ordered to meet and confer they had, at best, only gone through the motions. A number of petty items - such as correcting address and contact information for certain third parties - were finally taken care of. [Dkt. # 72]. The fact that repeated court intervention was required before counsel for plaintiff could provide correct contact information goes a long way to demonstrate that any prior Rule 37 meet-and-confers between the parties were not undertaken in good faith. On December 2, 2015, I conducted an extensive "settlement conference" in my chambers and resolved the remaining disputes. [Dkt. #75]. After dealing with the stances of both sides in these disputes - each leaving something to be desired - I determined that an award of fees was not appropriate because fault could not be apportioned without additional, protracted proceedings and denied the Castillos' motion for an award of fees. [Dkt. # 76].
In the interim, on December 1st, the District Court Judge denied G&G's motion to dismissthe Castillos' first amended counterclaim. [Dkt. #73]. Along the way, the Judge noted that she had denied the Castillos' motion to certify a class without prejudice with the understanding that it remained a placeholder under Damasco, and acknowledged that Damasco had since been overruled in Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015) to the extent that it held that a defendant's offer of full compensation moots the litigation or otherwise ends the Article III case or...
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