Mallory v. Rush Univ. Med. Ctr.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
PartiesCHRISTY MALLORY, Plaintiff, v. RUSH UNIVERSITY MEDICAL CENTER, an Illinois not-for-profit corporation, Defendant.
Docket NumberNo. 18 C 4364,18 C 4364
Decision Date09 February 2021

Judge Sara L. Ellis


Plaintiff Christy Mallory alleges that she sustained severe and permanent injuries when she slipped and fell on a puddle of liquid in Defendant Rush University Medical Center's hospital building. In June 2018, Mallory filed a complaint asserting negligence against Rush. As discussed further, the ensuing litigation has not gone smoothly (to put it mildly).

At issue here are motions and requests filed by both parties. Mallory moves to vacate four orders the magistrate judge entered sanctioning her or her counsel on the basis that the magistrate judge did not have authority to issue the orders. Rush moves to dismiss this case with prejudice as a sanction under Federal Rule of Civil Procedure 41(b) or the Court's inherent authority.1 Rush also seeks sanctions under Federal Rule of Civil Procedure 11 awarding the attorneys' fees it incurred in responding to Mallory's motion to vacate and replying to Mallory's opposition to Rush's motion to dismiss. Because Mallory did not raise her challenge to the magistrate judge's authority before the magistrate judge or in a timely manner before this Court, the Court denies her motion to vacate the magistrate judge's sanctions orders [214]. The Courtalso exercises its discretion to deny Rush's requests for Rule 11 sanctions. However, the Court grants Rush's motion to dismiss with prejudice [208] because there is a clear record of delay and contumacious conduct on the part of Mallory's counsel, and less drastic sanctions would be ineffective. Therefore, the Court dismisses this case with prejudice pursuant to Rule 41(b).

I. Delay, Missed Deadlines, and Requests for Extensions

After Mallory initiated this suit in June 2018, the district judge2 ordered the parties to exchange Mandatory Initial Discovery Pilot ("MIDP") disclosures by October 11, 2018 and to complete all fact discovery, including discovery with respect to Mallory's treating physicians, by April 12, 2019. Doc. 16. The district judge also referred the case to the assigned magistrate judge for discovery supervision. As part of this supervision, the magistrate judge ordered each party to serve written discovery requests by October 18, 2018, serve responses to these requests by November 18, and identify any issues it had with the opposing party's discovery responses by December 6. Doc. 18.

Mallory's counsel, Calvita J. Frederick, failed to comply with these deadlines from the start; she served Mallory's MIDP disclosures five days late and her written discovery responses more than two weeks late, and she failed to identify any issues with Rush's written discovery responses by the December 6 deadline. See Doc. 20 at 2-3; Doc. 20-1 at 1; Doc. 35-1 at 15, 23. The magistrate judge subsequently gave Frederick until December 31 to identify any such issues, Doc. 24, but she did not meet this deadline either. Instead, she requested an extension of the deadline after it had already passed. Doc. 25. The magistrate judge again extended the deadline for Frederick to identify any issues with Rush's written discovery—this time until January 22,2019—but required her to identify these issues in a motion to compel. Doc. 27. Frederick missed this deadline as well. Almost three weeks after the January 22 deadline, Frederick sought another extension of time. Doc. 29. The magistrate judge denied the request this time, noting the previous extensions he had already provided and the importance of "clos[ing] the loop on written discovery before moving forward with oral discovery." Doc. 32. Thereafter, on February 25, 2019, Frederick moved the district judge to extend the fact discovery deadline by sixty days. Doc. 37. The district judge denied her request. Doc. 41.

On March 21, 2019 (shortly before the original close of fact discovery), the magistrate judge expressed his concern with "the level of diligence Plaintiff has exercised in meeting her discovery obligations" regarding the disclosure of her treating physicians, Doc. 47 at 1-2, and he extended the fact discovery deadline by two months at Rush's request because of Mallory's failure to accurately and timely disclose her treating physicians, Doc. 48 at 10; Doc. 54. Fact discovery closed on June 11, 2019.

As the litigation progressed, Mallory's counsel continued to show an inability to meet the deadlines set by the judges overseeing the case, and she regularly sought last-minute extensions when she ran up against these deadlines. On the day Mallory's Rule 26(a)(2)(C) expert disclosure was due, June 20, 2019, Frederick sought a seven-day extension to serve the disclosure, claiming that she severely sprained her foot, was on pain medication, and her car malfunctioned and stranded her on the highway the day before the disclosure was due. Doc. 58. Consequently, she was "distracted and unable to focus and complete the disclosures in the time allotted." Id. at 2. The magistrate judge granted the request. Doc. 60. Yet, despite the extension, the record indicates that Mallory never served an expert disclosure.

On July 29, 2019, Rush moved for summary judgment. Doc. 67. The district judge gave Mallory until August 22 to respond, Doc. 72, but she did not meet this deadline. Instead, Frederick waited until the day before the response was due to seek a twenty-one-day extension. Doc. 73. She claimed that "an unusually heavy workload, which included a number of lengthy pleadings and several emergency matters" prevented her from completing her response on time. Id. at 1. The district judge gave Mallory an additional four weeks to respond to Rush's summary judgment motion,3 Doc. 75, but Frederick again could not meet the deadline, claiming an "unusually heavy workload, which included a number of lengthy pleadings and several emergency matters" (again) coupled with the effort it took to send her two daughters off to college, Doc. 78 at 1-2. She sought a three-day extension, which the district judge granted. Id. at 2; Doc. 83.

On February 19, 2020, the Court denied Rush's motion for summary judgment because factual issues existed regarding whether the puddle on which Mallory slipped was open and obvious, whether Rush had notice of the puddle, and whether Mallory's slip and fall proximately caused her injuries. Doc. 88. In light of the Court's summary judgment ruling, Rush re-filed a motion to compel that the magistrate judge had denied without prejudice in July 2019 because of Rush's pending summary judgment motion. Docs. 65, 71. The motion asked the magistrate judge to compel Mallory to execute and produce authorizations to obtain certain medical records. Doc. 65 at 1; Doc. 91 at 1. The day her response was due (March 6, 2020), Frederick sought a five-day extension due to an "unusually busy" schedule in the last two weeks. Doc. 93 at 1. The magistrate judge granted the motion and was even more accommodating than Frederick requested, as he gave her until March 20 to file her response. Docs. 95, 96.

On March 16, 2020, the Chief Judge of the District Court issued Amended General Order 20-0012, which addressed the COVID-19 public emergency. Doc. 97. Although the amended general order extended currently set deadlines by twenty-one days, id. at 1 (¶ 1), it did not affect the authority of judges to otherwise enter orders in their cases, id. at 4 (¶ 10). The magistrate judge immediately thereafter ordered that Mallory's March 20 response date still stood. Doc. 98. But Mallory did not file a response by March 20, and the magistrate judge granted Rush's motion to compel on March 22. Doc. 100. The magistrate judge gave Mallory until April 13 to execute and return the necessary medical authorizations.

Mallory did not comply with this deadline either. Instead, on the day the authorizations were due, she moved to vacate the magistrate judge's March 22 order because, among other things, the magistrate judge should have given her additional time to respond given the extended deadlines provided by the District's COVID-19 general orders and because Frederick "is in a high-risk category for exposure to Covid-19 [for] several reasons, has not been feeling very well, has been working very little, and has no way to do legal research from home." Doc. 103 at 2-3. The magistrate judge denied Mallory's motion to vacate and, accounting for the extension of deadlines authorized by the District's second amended general order regarding COVID-19, gave Mallory until May 11 to return the executed authorizations required by the March 22 order. Docs. 107, 109. On May 11, however, Mallory provided an improperly executed authorization, and the hospital that maintained the records at issue would not produce the records based on the invalid authorization. Doc. 119 at 2-3. This necessitated yet another motion to compel from Rush, and it does not appear that Mallory provided a proper authorization until late June 2020.4

Meanwhile, Mallory moved on May 11, 2020 for leave to re-open discovery, arguing that because her treatment was ongoing, new treaters had emerged, and that Rush had recently disclosed previously undisclosed witnesses and record custodians. Doc. 111. The magistrate judge denied the motion without prejudice because the issue of whether to re-open fact discovery was not yet ripe based on the parties' briefing. Doc. 117. Mallory later renewed her motion, asking for discovery to re-open so that she could depose the new medical providers who had been treating her since September 2019 and obtain discovery from the witnesses Rush had recently disclosed. Doc. 135.

On July 15, 2020, Rush served a Rule 26(a)(2)(B)-(C) disclosure and report from its retained medical expert witness, Dr. Scott Cordes. Doc. 138 at 1; Doc. 179-1 at 28-40. After Frederick issued a subpoena seeking...

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