Collins v. Illinois

• Decision Date: 02 February 2009
• Docket Number: No. 08-1552.,No. 07-3539.,08-1552.,07-3539.
• Citation: 554 F.3d 693
• Parties: Margaret J. COLLINS, Plaintiff-Appellant, v. State of ILLINOIS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

554 F.3d 693

Margaret J. COLLINS, Plaintiff-Appellant, v. State of ILLINOIS, et al., Defendants-Appellees.

No. 08-1552.

No. 07-3539.

United States Court of Appeals, Seventh Circuit.

Submitted December 11, 2008.^*

Decided February 2, 2009.

Margaret J. Collins, Springfield, IL, pro se.

Mary E. Welsh, Office of the Attorney General, Chicago, IL, Mary L. Leahy, Springfield, IL, Deborah L. Ahlstrand, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.

PER CURIAM.

Margaret Collins, who works at the Illinois State Library, has long been embroiled in litigation with her employer, her union, and officials of both. This is her third lawsuit claiming employment discrimination, and although the district court initially dismissed it after concluding that Collins's complaint duplicated her earlier suits, we detected some new claims and remanded the case in part for those claims to be considered. See Collins v. Illinois, 125 Fed.Appx. 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 discovery 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 consolidated 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 interrogatories and ignored requests for production of documents, 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 defendants' motion, the court extended the discovery deadline to September 5, 2007.

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 determined that her objections to the court reporter and the police officers outside the building were baseless, and that 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 previous 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 judgment 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 FED. R. CIV. P. 59(e). Collins then filed a notice of appeal challenging 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 explanation, 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 "incomprehensible 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 summary 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.

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 dismissal as a sanction for a party's failure to appear for a deposition after being served with proper notice. See FED. R.CIV.P. 37(d)(l)(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 prosecution or failure to comply with orders of the court. See Maynard, 332 F.3d at 467. But...