Petition for Writ of Certiorari — In Re Sandra Black, Petitioner
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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 1 of 25
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SANDRA BLACK,
Plaintiff,
v.
NAOMI FRIEDRICHSEN, et al.,
Defendants.
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Case No. l:19-cv-00307-WCL-SLC
i
OPINON AND ORDER
Before the Court is a motion to compel filed by pro se Plaintiff, seeking to compel
Defendants to more fully respond to her requests for admissions and requests for production and
asking that sanctions be imposed against Defendants. (ECF 69). On November 2, 2020,
Defendants filed a response to Plaintiffs motion (ECF 71) and a separate motion to compel,
together with a supporting memorandum, seeking to compel Plaintiff to appear for her deposition
(ECF 72, 73). On November 9, 2020, Plaintiff filed a “reply” (ECF 75) to Defendants’ motion to
compel, in which she responded to Defendants’ response to her motion (ECF 71) as well as to
Defendants’ motion to compel (ECF 72). No party filed any subsequent response or reply to
either motion and their time to do so has now passed. See N.D. Ind. L.R. 7-l(d)(3).
Accordingly, the Court considers both matters fully briefed and ripe for resolution. For the
following reasons, Plaintiffs motion (ECF 69) is DENIED, and Defendants’ motion (ECF 72) is
GRANTED. l
1 While the Court previously stated that it would set a telephonic hearing on Plaintiffs motion to compel {See ECF
70), after reviewing the parties’ filings and arguments the Court no longer believes a hearing is necessary.
1
7
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 2 of 25
A. Background
Plaintiff initiated this matter on July 10, 2019, asserting that Defendants discriminated
against her on account of her race in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §
3601 etseq. (ECF 1 at2).2 Plaintiff “alleges in her Complaint that Defendants discriminated
against her on the basis of her race, African-American, by falsely accusing her of numerous lease
violations over the course of several years in an attempt to force her to vacate the apartment she
rented from Defendants in Marion, Indiana.” (ECF 28 at 2 (citing ECF 1)). In particular,
Plaintiff asserts that Defendants instigated an undue state-court eviction proceeding against her
in Grant County Superior Court of Indiana, Small Claims Division, Case No. 27D03-1705-SC000517,3 on the grounds that Plaintiff allowed unauthorized guests—her grandchildren—to live
in the apartment in violation of her lease. (ECF 1 at 2; ECF 15-1). The parties eventually agreed
to allow Plaintiff to remain in the apartment temporarily in exchange for Plaintiff vacating the
property by September 21, 2017. (ECF 15-6, 15-7). Accordingly, the state action was
dismissed. (ECF 15-8). Plaintiff then filed a complaint of discrimination against Defendants
before the Indiana Civil Rights Commission, which subsequently found no reasonable cause to
believe that Defendants violated the FHA. (ECF 15-9, 15-10).
2 Plaintiff initially filed a complaint against Defendants in case number 1:19-cv-222. District Judge William Lee
dismissed that case for lack of subject-matter jurisdiction. (l:19-cv-222, ECF 3). In a motion to reconsider,
Plaintiff raised fof the first time a potential FHA violation, invoking this Court’s federal question jurisdiction. (1:19cv-222, ECF 5). Accordingly, Judge Lee directed the clerk to file Plaintiffs motion to reconsider as a new
complaint in this matter. (1:19-cv-222, ECF 6).
3 Per the Defendants’ first motion to dismiss and supporting memorandum, Defendant Hunters Run Apartments and
Owners (“Hunters Run”) initially filed a Complaint for Possession of Real Property and Past Due Rent in the Grant
County Superior Court of Indiana, Small Claims Division, under case number 27D03-1705-SC-000517. (ECF 15 at
2). Following Plaintiffs request for a jury trial, the matter was transferred to the Grant County Superior Court’s
plenary docket and Hunters Run filed an' amended complaint under case number 27D03-1706-PL-000014. (Id. at 2).
For ease of reference, the Court will refer the state court proceedings under each case number as the “Grant County
case.”
2
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■ > USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 2 of 25
A. Background
Plaintiff initiated this matter on July 10, 2019, asserting that Defendants discriminated
against her on account of her race in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §
3601 et seq. (ECF 1 at2).2 Plaintiff “alleges in her Complaint that Defendants discriminated
against her on the basis of her race, African-American, by falsely accusing her of numerous lease
violations over the course of several years in an attempt to force her to vacate the apartment she
rented from Defendants in Marion, Indiana.” (ECF 28 at 2 (citing ECF 1)). In particular,
Plaintiff asserts that Defendants instigated an undue state-court eviction proceeding against her
in Grant County Superior Court of Indiana, Small Claims Division, Case No. 27D03-1705-SC000517,3 on the grounds that Plaintiff allowed unauthorized guests—her grandchildren—to live
in the apartment in violation of her lease. (ECF 1 at 2; ECF 15-1). The parties eventually agreed
to allow Plaintiff to remain in the apartment temporarily in exchange for Plaintiff vacating the
property by September 21, 2017. (ECF 15-6, 15-7). Accordingly, the state action was
dismissed. (ECF 15-8). Plaintiff then filed a complaint of discrimination against Defendants
before the Indiana Civil Rights Commission, which subsequently found no reasonable cause to
believe that Defendants violated the FHA. (ECF 15-9, 15-10).
2 Plaintiff initially filed a complaint against Defendants in case number 1:19-cv-222. District Judge William Lee
dismissed that case for lack of subject-matter jurisdiction. (l:19-cv-222, ECF 3). In a motion to reconsider,
Plaintiff raised fof the first time a potential FHA violation, invoking this Court’s federal question jurisdiction. (1:19cv-222, ECF 5). Accordingly, Judge Lee directed the clerk to file Plaintiffs motion to reconsider as a new
complaint in this matter. (l:19-cv-222, ECF 6).
3 Per the Defendants’ first motion to dismiss and supporting memorandum, Defendant Hunters Run Apartments and
Owners (“Hunters Run”) initially filed a Complaint for Possession of Real Property and Past Due Rent in the Grant
County Superior Court of Indiana, Small Claims Division, under case number 27D03-1705-SC-000517. (ECF 15 at
2). Following Plaintiffs request for a jury trial, the matter was transferred to the Grant County Superior Court’s
plenary docket and Hunters Run filed an' amended complaint under case number 27D03-1706-PL-000014. (Id. at 2).
For ease of reference, the Court will refer the state court proceedings under each case number as the “Grant County
case.”
2
'
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 3 of 25
On June 30, 2020, this Court entered a scheduling order pursuant to Federal Rule of Civil
Procedure 16, setting July 26, 2021, as the last date to complete all discovery. (ECF 45, 46). On
August 19, 2020, Plaintiff propounded her first set of requests for production on all Defendants.
(ECF 55). On September 14, 2020, Plaintiff similarly propounded Requests for Admissions on
Defendants Hunter Run and Interstate Realty Management Company (ECF 61), Erika Holliday
(ECF 62), and Naomi Friedrichsen (ECF 63). Three days later, on September 17, 2020,
Defendants responded to Plaintiffs request for production (ECF 55), raising a variety of
objections to each of Plaintiff s requests (ECF 64), but producing 101 pages of responsive
documents (ECF 64-1 through ECF 64-5). On October 9, 2020, Defendants filed a notice of
deposition—scheduling a deposition of Plaintiff (ECF 65)—as well as responses to each of
Plaintiffs requests for admissions—again raising multiple objections to each request (ECF 6668).
On October 19, 2020, Plaintiff filed the instant motion to compel asserting that
Defendants and their counsel did not act in good faith in responding and objecting to her
discovery requests. (ECF 69). More specifically, Plaintiff repeatedly claims that Defendants’
counsel was “lying” and at numerous points accuses counsel and the individual Defendants of
committing perjury. (See, e.g., id. at 1, 2, 8). Defendants, in response, attach multiple emails as
evidence that they have attempted to confer in good faith with Plaintiff regarding their objections
to her discovery requests. (ECF 71-1 through ECF 71-7). Similarly, Defendants maintain that
their various objections to Plaintiffs requests were valid—namely that her requests were, at
different points, vague, overly broad, compound, and generally improper. (ECF 71).
On November 2, 2020, Defendants filed their own motion to compel (ECF 72), alleging
that Plaintiff had refused to attend her scheduled deposition. (ECF 73 at 2; ECF 73-1). Plaintiff,
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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 4 of 25,
in response, contends that her deposition should be postponed because Defendants have failed to
fully comply with her discovery requests. (ECF 75 at 2). Plaintiff similarly alleges that the
deposition will be used to “taunt” her and reiterated her claims that Defendants and their counsel
have acted in bad faith. (Id; ECF 75-1).
B. Applicable Law
Pursuant to Federal Rule of Civil Procedure 34, a party may serve another with a request
to produce or permit the party to inspect a document or thing “in the responding party’s
possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Such requests must be within the
scope of discovery permitted by Federal Rule 26(b)—that is—it must be relevant to a party’s
claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b), 34(a). The
responding party may object to a request that it believes is improper pursuant to Federal Rule
34(b)(2)(C).
Similarly, per Federal Rule of Civil Procedure 36, “[a] party may serve on any other
party a written request to admit... the truth of any matters within the scope of Rule 26(b)(1)
relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the
genuineness of any described documents.” “[RJequests for admission must be simple, direct and
concise so they may be admitted or denied with little or no explanation or qualification.”
Sommerfield v. City of Chi., 251 F.R.D. 353, 355 (N.D. Ill. 2008). Further, an answering party
may respond to a request for admission by denying, stating in detail why it cannot truthfully
admit or deny the request, or objecting to a request—so long as it does not “object solely on the
ground that the request presents a genuine issue for trial.” Fed. R. Civ. P. 36(a)(4)-(5).
Under Federal Rule of Civil Procedure 37, a party is permitted to file a motion to compel
discovery where another party fails to respond to requests for admission or requests for
4
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‘ USDC, IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 4 of 25
in response, contends that her deposition should be postponed because Defendants have failed to
fully comply with her discovery requests. (ECF 75 at 2). Plaintiff similarly alleges that the
deposition will be used to “taunt” her and reiterated her claims that Defendants and their counsel
have acted in bad faith. (Id; ECF 75-1).
B. Applicable Law
Pursuant to Federal Rule of Civil Procedure 34, a party may serve another with a request
to produce or permit the party to inspect a document or thing “in the responding party’s
possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Such requests must be within the
scope of discovery permitted by Federal Rule 26(b)—that is—it must be relevant to a party’s
claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b), 34(a). The
responding party may object to a request that it believes is improper pursuant to Federal Rule
34(b)(2)(C).
Similarly, per Federal Rule of Civil Procedure 36, “[a] party may serve on any other
party a written request to admit... the truth of any matters within the scope of Rule 26(b)(1)
relating to: (A) facts, the application of law to fact,- or opinions about either; and (B) the
genuineness of any described documents.” “[Rjequests for admission must be simple, direct and
concise so they may be admitted or denied with little or’hfo explanation or qualification.”
Sommerfield v. City of Chi., 251 F.R.D. 353, 355 (N.D. I1D2008). Further, an answering party
may respond to a request for admission by denying, stating in detail why it cannot truthfully
admit or deny the request, or objecting to a request—so long as it does not “object solely on the
ground that the request presents a genuine issue for trial.” Fed. R. Civ. P. 36(a)(4)-(5).
Under Federal Rule of Civil Procedure 37, a party is permitted to file a motion to compel
discovery where another party fails to respond to requests for admission or requests for
4
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 5 of 25
production of documents. Fed. R. Civ. P. 37(c); see also Redmond v. Leatherwood, No. 06-C1242, 2009 WL 212974, at *1 (E.D. Wis. Jan. 29, 2009). “A motion to compel discovery
pursuant to Rule 37(a) is addressed to the sound discretion of the trial court.” Redmond, 2009
WL 212974, at *1 (citation omitted). While a discovery request is entitled to “broad and liberal
treatment,” Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963), a discovery
request, “like all matters of procedure, has ultimate and necessary boundaries,” Hickman v.
Taylor, 329 U.S. 495, 507 (1947). The moving party generally bears the burden of proving that
the discovery it seeks is relevant to the case. See United States v. Lake Cty. Bd. of Comm ’rs, No.
2:04 CV 415, 2006 WL 978882, at *1 (N.D. Ind. Apr. 7, 2006) (citations omitted). Conversely,
“[t]he party opposing discovery has the burden of proving that the requested discovery should be
disallowed.” Bd. ofTrs. of the Univ. ofIII. v. Micron Tech., Inc., No. 211-cv-02288-SLD-JEH,
2016 WL 4132182, at *3 (C.D. Ill. Aug. 3, 2016) (collecting cases).
Subject to certain limited exceptions, “[a] party may, by oral questions, depose any
person, including a party, without leave of court” so long as that person and the other parties
have “reasonable written notice.” Fed. R. Civ. P. 30(a)(1). “In the absence of a showing of a
lack of good faith on the part of [her] adversary, a party may not refuse, upon deposition, to
reveal matters specifically within the scope of the examination permitted by the [Federal Rules].”
Smith, Kline & French Labs. v. Lannett Co., 2 F.R.D. 561, 562 (E.D. Pa. 1942). Courts have
found a party’s willful failure to attend her deposition grounds for sanctions. See, e.g., Stewart v.
Illinois, No. 01 C 5520, 2003 WL 21939036, at *1 (N.D. Ill. Aug. 12, 2003).
5
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 6 of 25
C. Analysis
1. Plaintiff’s Motion to Compel
Having reviewed both Defendants’ discovery responses (ECF 64, 66-68) and Plaintiffs
motion (ECF 69), the Court agrees with Defendants that Plaintiffs motion is generally meritless
and should be denied. In her motion, Plaintiff raises specific arguments as to Defendants’
responses to Items 1-74 of her requests for production.5 (ECF 69). Plaintiff also raises more
general arguments as to Defendants’ responses to her requests for admissions, contending that
Defendants have committed perjury and have lied in their responses. (Id. at 1-3). Finally,
Plaintiff requests sanctions against Defendants and their counsel and asks that Defendants’
discovery responses be “excluded.” (Id. at 10). The Court will address each argument in turn.
i. Request for Production. Item 1
Plaintiff first requests that Defendants produce any documents listing any white, “section
8” tenants, with certain criteria6—presumably similar to Plaintiff—that were issued either a
“final pet warning without any prior pet warning,” a request to vacate due to unauthorized
guests, or were served with an eviction lawsuit. (ECF 55 at 2-3). Plaintiff, in the same request,
4 Plaintiff labels each request for production as an “item.” (See ECF 55). For the sake of consistency, the Court will
follow suit.
5 Plaintiff raises additional arguments as to other “items” and responses in her reply brief. (See ECF 75). “A reply
brief, though, is not the proper vehicle to raise new arguments not presented in an opening brief.” White v. United
States, 23 F. App’x 570, 571 (7th Cir. 2001). In any event, Plaintiffs arguments in her reply largely mirror the
arguments raised in her motion. Because such arguments are generally meritless, the Court sees no reason to
address the additional points raised in Plaintiffs reply.
6 In particular, Plaintiff seeks documentation regarding white, “Section 8” tenants who had:
A. Never missed paying rent, never paid late rent;
B. Had no criminal activity
C. Had no property damage
D. No immediate neighbor complaints ....
E. Very little to no company at the home
F. Maintained an orderly, quiet well ran home
(ECF 64 at 2-3).
6
USfrC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 6 of 25
C. Analysis
1. Plaintiff's Motion to Compel
Having reviewed both Defendants’ discovery responses (ECF 64, 66-68) and Plaintiffs
motion (ECF 69), the Court agrees with Defendants that Plaintiffs motion is generally meritless
and should be denied. In her motion, Plaintiff raises specific arguments as to Defendants’
responses to Items 1-74 of her requests for production.5 (ECF 69). Plaintiff also raises more
general arguments as to Defendants’ responses to her requests for admissions, contending that
Defendants have committed perjury and have lied in their responses. (Id. at 1-3). Finally,
Plaintiff requests sanctions against Defendants and their counsel and asks that Defendants’
discovery responses be “excluded.” (Id. at 10). The Court will address each argument in turn.
i. Request for Production. Item 1
Plaintiff first requests that Defendants produce any documents listing any white, “section
8” tenants, with certain criteria6—presumably similar to Plaintiff—that were issued either a
“final pet warning without any prior pet warning,” a request to vacate due to unauthorized
guests, or were served with an eviction lawsuit. (ECF 55 at 2-3). Plaintiff, in the same request,
4
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4 Plaintiff labels each request for production as an “item.” (See ECF 55). For the sake of consistency, the Court will
follow suit.
5 Plaintiff raises additional arguments as to other “items” and responses in her reply brief. (See ECF 75). “A reply
brief, though, is not the proper vehicle to raise new arguments not presented in an opening brief.” White v. United
States, 23 F. App’x 570, 571 (7th Cir. 2001). In any event, Plaintiff’s arguments in her reply largely mirror the
arguments raised in her motion. Because such arguments are generally meritless, the Court sees no reason to
address the additional points raised in Plaintiffs reply.
6 In particular, Plaintiff seeks documentation regarding white, “Section 8” tenants who had:
A. Never missed paying rent, never paid late rent;
B. Had no criminal activity
C. Had no property damage
D. No immediate neighbor complaints ....
E. Very little to no company at the home
F. Maintained an orderly, quiet well ran home
(ECF 64 at 2-3).
6
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US'Dp IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 7 of 25
also seeks the production of any such warning, request, or civil complaint, as well as any
documentation of similarly situated white, “section 8” tenants who were not treated “harshly.”
(Id). Defendants objected on the grounds that Plaintiffs request was “vague, overly broad in
time and scope, unduly burdensome, and seeking information that is not relevant and not
\
reasonably calculated to lead to the discovery of admissible evidence,” and generally
\^unintelligible. (ECF 64 at 3-4). As such, Defendants produced no responsive documents. (Id.).
As an initial matter, the Court reads Plaintiffs request as seeking evidence of similarly
situated white tenants who were treated differently than her. Such “comparator” evidence would
certainly seem relevant to a claim under 42 U.S.C. § 3604(b) or § 3617, and within the scope of
Rule 26. See Mehta v. Vill. of Bolingbrook, 196 F. Supp. 3d 855, 867 (N.D. Ill. 2016) (“[T]o
prevail on a claim under section 3617, a plaintiff must show (1) [s]he is protected under the
FHA; (2) [s]he was engaged in the enjoyment or exercise of [her] FHA rights; (3) defendants
were at least partly motivated by an intent to discriminate; and (4) defendants coerced,
intimidated, threatened, or interfered with the plaintiff on account of [her] FHA-protected
activity.”); Krieman v. Crystal Lake Apartments Ltd. P’ship, No. 05 C 0348, 2006 WL 1519320,
at *7 (N.D. Ill. May 31, 2006) (“[To prevail on a claim under § 3604(b),] Plaintiffs must show:
1) that they are members of a protected class; 2) that they were qualified to receive the services
in question; 3) that they were denied or delayed services by the Defendants; and 4) that
Defendants treated a similarly situated person outside of the protected class more favorably.”
(quoting Flores v. Vill. of Bensenville, No. 00 C 4905, 2003 WL 1607795, *4 (N.D. Ill. Mar. 26,
2003))). Indeed, in order to survive a motion for summary judgment or proceed at trial, Plaintiff
must show that Defendants treated similarly situated tenants differently than her. See id.
(granting summary judgment in part because “Plaintiffs claim[ed] that the air conditioners of
7
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 8 of 25
other tenants were repaired before their own, but could not identify those persons or provide any
support for their position.”).
That being said, Plaintiffs request, as written, is vague and overly broad for a variety of
reasons. “Courts analyzing a claim of hostile housing environment look to cases discussing
hostile work environment, under Title VII of the 1968 Civil Rights Act, for guidance.” 47
A.L.R. Fed. 3d Art. 3 (2019). “Under [Seventh Circuit Court of Appeals] precedents, ... an
employment discrimination plaintiff may demonstrate pretext by providing evidence that a
similarly situated employee outside her protected class received more favorable treatment.”
Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). However, in order to use such
comparator evidence, it must contain-^,‘enough common
71. to allow for a meaningful
comparison in order to divine whether intentional discrimination was at play.” Id. at 847
(quoting Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007)). As such, requests for
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discovery should be “limited to the time frame involving the alleged discriminatory conduct.”.
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alleged discriminatory actions, or any similarly relevant time period. SeeBreon v. Coca-Cola
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requesting information going back twenty years overly burdensome). Further, Plaintiff extended B
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her request to other documents concerning white tenants who were not treated “harshly.” This
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other tenants were repaired before their own, but could not identify those persons or provide any
support for their position.”).
That being said, Plaintiff s request, as written, is vague and overly broad for a variety of
reasons. “Courts analyzing a claim of hostile housing environment look to cases discussing
hostile work environment, under Title VII of the 1968 Civil Rights Act, for guidance.” 47
A.L.R. Fed. 3d Art. 3 (2019). “Under [Seventh Circuit Court of Appeals] precedents, .. . an
employment discrimination plaintiff may demonstrate pretext by providing evidence that a
similarly situated employee outside her protected class received more favorable treatment.”
Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). However, in order to use such
comparator evidence, it must contair^enough common factors 7). . to allow for a meaningful
comparison in order to divine whether intentional discrimination was at play.” Id. at 847
(quoting Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007)). As such, requests for
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discovery should be “limited to the time frame involving the alleged discriminatory conduct.”.
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Johnson v. Jung, No. 02 C 5221, 2007 WL 1752608, at *2 (N.D. Ill. June 14, 2007) (internal
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alleged discriminatory actions, or any similarly relevantttime period. See Breon v. Coca-Cola
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USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 9 of 25
motion to compel (ECF 69) is DENIED as to Item 1. Plaintiff is ENCOURAGED to work with
Defendants to narrow this request in time and scope.
ii. Request for Production. Item 2
In her second request, Plaintiff sought documents “that show that [she] missed paying
rent or was late paying rent.” (ECF 55 at 3). Defendants again objected on the grounds that the
request was vague, overly broad, unduly burdensome, not relevant and not reasonably calculated
to lead to admissible evidence, and sought information already in the possession, custody, or
control of Plaintiff. (ECF 64 at 4). Nevertheless, Defendants produced one responsive
document—a June 6, 2016, letter to Plaintiff stating that there was an outstanding balance on her
account. (ECF 64-1). Plaintiff, in turn maintains that “[t]here should be no objection to [her]
having this evidence that [Defendants are admitting to a good payment history of the plaintiff..
. .” (ECF 69 at 4).
As an initial matter, it is not clear what Defendants find vague or unduly burdensome
about Plaintiffs request. “The burden rests upon the objecting party to show why a particular
discovery request is improper.” McGrath v. Everest Nat’l Ins. Co., 625 F. Supp. 2d 660, 670
(N.D. Ind. 2008) (citation and internal quotation marks omitted). Unlike Item 1, it is not clear
from the text of the request what Defendants are objecting to, and courts have consistently held
that mere “boilerplate” objections to discovery such as the ones employed here—without more—
do not constitute grounds for noncompliance with a discovery request. See Fudali v. Napolitano,
283 F.R.D. 400, 403 n.2 (N.D. Ill. 2012) (collecting cases); see also Gingerich v. City ofElkhart
Prob. Dept., 273 F.R.D. 532, 542-43 (N.D. Ind. 2011). That being said, it appears that
Defendants did in fact comply with Plaintiffs request—producing the June 6, 2016, letter.
9
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 10 of 25
Plaintiffs main concern seems to be that Defendants did not admit that she had a “good”
payment history. (ECF 69 at 4). But that was not the request Plaintiff made. Plaintiff could
have posed a question about her payment history by way of an interrogatory pursuant to Federal
Rule of Civil Procedure 33 or a request for admission pursuant to Rule 36. Or, Plaintiff could
have requested documents showing that she had made full and timely rent payments. But that is
not what she did. She asked for any documentation that she missed rent payments and so that is
what she received.
Lastly, while Plaintiff takes issue with Defendants objecting to her request, Federal Rule
34(b) specifically contemplates parties objecting to requests for production. Further, objections
under Rule 34 are generally considered waived unless raised in a timely manner. See Whitlow v.
Martin, 259 F.R.D. 349, 354 (C.D. Ill. 2009). While the use of boilerplate objections to
discovery requests may not be persuasive, they are not uncommon) The fact that Defendants
lodged these objections but otherwise attempted to comply with Plaintiffs discovery requests"
does not suggest that they acted in bad faith. See Hashim v. Ericksen, No. 14-CV-1265, 2016
WL 6208532, at *2 (E.D. Wis. Oct. 22, 2016'/(“Plaintiff disagrees withdefendants’ denial of
x^this^admisslqn s requestsA However, defendants responded to the request and plaintiffs
disagreement with it is not the proper subject of a motion to compel.” (internal citation
omitted)). Accordingly, because Defendants appear to have complied with Plaintiffs request,
her motion to compel is DENIED as to Item 2.
iii. Request for Production. Item 3
In her next request, Plaintiff asked for “documents showing that [she] had criminal
activity during her tenancy.” (ECF 55 at 3). In addition to the boilerplate objections raised in '
their othefresponses, Defendants specifically objected that the phrase “criminal activity” is
10
• USDC.IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 10 of 25
Plaintiffs main concern seems to be that Defendants did not admit that she had a “good”
payment history. (ECF 69 at 4). But that was not the request Plaintiff made. Plaintiff could
have posed a question about her payment history by way of an interrogatory pursuant to Federal
Rule of Civil Procedure 33 or a request for admission pursuant to Rule 36. Or, Plaintiff could
have requested documents showing that she had made full and timely rent payments. But that is
not what she did. She asked for any documentation that she missed rent payments and so that is
what she received.
Lastly, while Plaintiff takes issue with Defendants objecting to her request, Federal Rule
34(b) specifically contemplates parties objecting to requests for production. Further, objections
under Rule 34 are generally considered waived unless raised in a timely manner. See Whitlow v.
Martin, 259 F.R.D. 349, 354 (C.D. Ill. 2009). While the use of boilerplate objections to \
~ •—...—~
discovery requests may not be persuasive, they are not uncommon) The fact that Defendants
—----- ---- ^____
i—
lodged these objections but otherwise attempted to comply with Plaintiffs discovery requests"
does not suggest that they acted in bad faith. See Hashim v. Ericksen, No. 14-CV-1265, 2016
WL 6208532, at *2 (E.D. Wis. Oct. 22, 2016) (“Plaintiff disagrees withTelendaSs^enial of
-^thjsjdmi^signs requests.^ However, defendants responded to the request and plaintiffs
disagreement with it is not the proper subject of a motion to compel.” (internal citation
omitted)). Accordingly, because Defendants appear to have complied with Plaintiffs request,
her motion to compel is DENIED as to Item 2.
iii. Request for Production, Item 3
In her next request, Plaintiff asked for “documents showing that [she] had criminal
activity during her tenancy.” (ECF 55 at 3). In addition to the boilerplate objections raised in
their other"responses, Defendants specifically objected that the phrase “criminal activity” is
10
i-
•
USbC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 11 of 25
vague, ambiguous, and undefined. (ECF 64 at 4). Nevertheless, Defendants again responded to
the request, reporting that they had no responsive documents. (Id.).
Again, Plaintiff \ gripe/does not appear to be with the fact that Defendants do not have.
any responsive documents. Indeed, her request in Item 1 and her filings throughout this case
seem to suggest that she has no criminal history. Rather^lamtiffseems to take issue with the
fact that DefencUnt? 6bjected at all?l(See ECF 69 at 5 (“Thus [Defendants] must state none
without objection.”)). As already mentioned, though, parties are allowed to raise objections to
requests for production. Further, the Court agrees that the phrase “criminal activity” is vague. It
is not clear whether Plaintiff is requesting documents showing she was convicted of a crime
during her tenancy, or complaints from neighbors that Plaintiff or a member of her household
engaged in criminal activity, or for any record that a criminal act perpetrated by a third party
occurred in her household. In any event, though, a motion to compel is again inapplicable
because Defendants did in fact comply with the request—denying that any such document exists.
(ECF 64 at 4). Accordingly, Plaintiffs motion (ECF 69) is DENIED as to Item 3.
iv. Request for Production. Item 4
In her next request, Plaintiff sought “documents showing that [she] caused damage to her
property at the apartment due to neglect or wrong use of the apartment.” (ECF 55 at 4).
Defendants again raised conclusory boilerplate objections, but specifically objected that the
“term[s] ‘neglect’, ‘wrong use’ and ‘violations’ are vague, ambiguous, and undefined.” (ECF 64
at 4). Nevertheless, Defendants produced five letters and two “friendly reminder” forms
detailing various alleged lease violations. (ECF 64-2). Again, Plaintiff asserts that Defendants
should have responded without raising any objections. (ECF 69 at 6 (“If [Defendants believe
that blinds are the property damage requested and that they were used ‘wrongful’ or broken by
11
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 12 of 25
‘neglect’ .... they should state: refer to the blinds violation ... without objection, (emphasis
in original))).
For the reasons already discussed supra, Plaintiffs motion to compel as to this request is
--*»*+****~~
, .L-nrnminTi r.Tii.il
r
__ ,
it*-*
.
.......... , , lt__ '
‘‘S-
meritless. Defendants are able to object to requests that they, in good faith, find ambiguous or
..
overly broad. Further, Defendants did in fact respond to Plaintiffs request. Accordingly,
Plaintiffs motion to compel as to ........
Item 4. is DENTED.
v. Request for Production. Item 5
Plaintiff next requested evidence that her “immediate neighbors complained about her.”
(ECF 55 at 4). Defendants objected on the grounds that the request was vague, overly broad,
unduly burdensome, irrelevant—specifically asserting that “the term ‘complained’ is vague,
ambiguous, and undefined.” (ECF 64 at 4). Still, in response to the request, Defendants referred
to their response to Item 4—which included a December 5, 2016, letter stating that Plaintiffs
surrounding neighbors had complained about her failing to cleaning up after her dog. (ECF 64-2
-i i ii
■>
1
^ .............""......... maw,,.............................................
at 7). A handwritten note signed by Defendant Erika Holliday on the letter, however, states to
“please disregard” and that the letter was later “removed from file.” Id.
Plaintiffs motion as to this request is somewhat contradictory. She asks that Defendants
be compelled to “submit all complaints made by neighbors” but states that they cannot refer to a
violation that they affirmatively “disregarded and removed from the file.” (ECF 69 at 8
(emphasis omitted)). Again, Plaintiff seems to take issue with the form of Defendants’ response
ivntsai
but not its substance. Plaintiff asked for documentation in Defendants’ custody or control
showing that neighbors had complained about her. Accordingly, Defendants produced a letter
they had sent purporting to be a response to complaints they had received about Plaintiffs dog.
Though Defendant Erika Holliday admitted in response to a request for admission that it was
12
• USDC. IN/ND case l:19-cv~00307-WCL-SLC document 80 filed 01/19/21 page 12 of 25
‘neglect’ .... they should state: refer to the blinds violation ... without objection, (emphasis
in original))).
For the reasons already discussed supra, Plaintiffs motion to compel as to this request is
meritless. Defendants are able to object to requests that they, in good faith, find ambiguous or
overly broad. Further, Defendants did in fact respond to Plaintiffs request. Accordingly,
Plaintiffs motion to compel as to Item 4 is DENTED.
v. Request for Production. Item 5
Plaintiff next requested evidence that her “immediate neighbors complained about her.”
(ECF 55 at 4). Defendants objected on the grounds that the request was vague, overly broad,
unduly burdensome, irrelevant—specifically asserting that “the term ‘complained’ is vague,
ambiguous, and undefined.” (ECF 64 at 4). Still, in response to the request, Defendants referred
to their response to Item 4-—which included a December 5, 2016, letter stating that Plaintiffs
surrounding neighbors had complained about her failing to cleaning up after her dog. (ECF 64-2
at 7). A handwritten note signed by Defendant Erika Holliday on the letter, however, states to
“please disregard” and that the letter was later “removed from file.” Id.
Plaintiff s motion as to this request is somewhat contradictory. She asks that Defendants
be compelled to “submit all complaints made by neighbors” but states that they cannot refer to a
»\
violation that they affirmatively “disregarded and removed1 from the file.” (ECF 69 at 8
(emphasis omitted)). Again, Plaintiff seems to take issue with the form of Defendants’ response
but not its subjstamce^ Plaintiff asked for documentation in Defendants’ custody or control
showing that neighbors had complained about her. Accordingly, Defendants produced a letter
they had sent purporting to be a response to complaints they had received about Plaintiffs dog.
Though Defendant Erika Holliday admitted in response to a request for admission that it was
12
4:
■
USbp IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 13 of 25
inadvertently issued (ECF 68 at 5), the letter still seems responsive to Plaintiffs request.
Accordingly, Plaintiffs motion as to Item 5 is also DENIED.
vi. Request for Production. Item 6
Plaintiff next asked Defendants to produce “documents showing that [her] grandchildren
caused trouble during their stay at Hunters Run.” (ECF 55 at 4). Defendants once again raised
boilerplate objections while specifically objecting to the phrase “trouble,” but otherwise
responded that they have no responsive documents. (ECF 64 at 5). Again, Plaintiffs issue
appears to be that Defendants raised objections to this request. (ECF 69 at 6 (“Either there is
documentation that the children were in trouble as tenants or there is no documentation. No
objections.”)). But Defendants complied with the request—stating that they had no responsive
documents—and thus, Plaintiffs motion as to Item 6 is DENIED.
vii. Request for Production. Item 7
Plaintiff next takes issue with Defendants’ response to Item 7 of her requests for
production. (ECF 69 at 2). In Item 7, Plaintiff requests that Defendants “[pjroduce documents
showing that [she] had ever been SERVED with any lease violation.” (ECF 55 at 4). Plaintiff
explains that “[j]ust a written account is riot a service. Anyone can write and make up 1000
violations.” (Id.). Rather, Plaintiff requests “ALL service violations . .. [such as a] court
eviction and all other such serviced violations or a US mailed violation.” (Id.). Defendants
objected to this request on the grounds that the request is vague—specifically the terms “served”
and “service violation”—overly broad in time and scope, unduly burdensome, and seeking
evidence that is not relevant or reasonably calculated to lead to the discovery of admissible
evidence. (ECF 64 at 5). Nevertheless, Defendants referred to the documents produced in
13
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 14 of 25
response to Item 4 (ECF 64-2 at 1-9), as well as Plaintiffs previous filings in the Grant County
case (ECF 64 at 5).
Plaintiffs request is vague. It is not clear what Plaintiff means by “service” or a
“serviced violation.” At least in legal parlance, “to serve” means “to make legal delivery of (a
notice of process),” or “to present (a person) with a notice of process required by law.” Serve,
Black’s Law Dictionary (11th ed. 2019). A “service” then, is “[t]he formal delivery of a writ,
summons, or other legal process, pleading, or notice to a litigant or other party interested in
litigation; the legal communication of a judicial process.” Service, Black’s Law Dictionary (11th
ed. 2019). Presumably, Plaintiff is requesting that Defendants produce a judicial determination
that she did or did not violate her lease.
There is nothing to suggest, though, that there has been any other lawsuit involving
Plaintiff or Defendants concerning her lease besides the/Grant County case which was dismissed J
—
^beforejrial. (ECF 15-8). Plaintiff seems to actually be requesting that Defendants admit that
such a document does not exist—that is to say, that there has been no judicial determination she
has violated her lease. (See ECF 69 at 2 (“[Defendants’ counsel] needs to state that no service of
any violation ever took place,... .”)). Such a reading, however, is far from clear from the text of
the request and is not within the scope of Rule 34—which again is limited to documents and.
things in Defendants’ custody or control.
Plaintiff also seems to doubt the authenticity of the documents produced—specifically,
the two “friendly reminder” documents. (ECF 69 at 7 (“I argued that the friendly reminders
were never issued to me and I have disputed [this] from the first time I ever saw them in [the
lower court.”)). That being said, itis not clear what that issue—whether or not Plaintiff saw
those two documents before now—has to do with discovery. As discussed in greater detail
14
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 14 of 25
response to Item 4 (ECF 64-2 at 1-9), as well as Plaintiffs previous filings in the Grant County
case (ECF 64 at 5).
Plaintiffs request is vague. It is not clear what Plaintiff means by “service” or a
“serviced violation.” At least in legal parlance, “to serve” means “to make legal delivery of (a
notice of process),” or “to present (a person) with a notice of process required by law.” Serve,
Black’s Law Dictionary (11th ed. 2019). A “service” then, is “[t]he formal delivery of a writ,
summons, or other legal process, pleading, or notice to a litigant or other party interested in
litigation; the legal communication of a judicial process.” Service, Black’s Law Dictionary (11th
ed. 2019). Presumably, Plaintiff is requesting that Defendants produce a judicial determination
that she did or did not violate her lease.
There is nothing to suggest, though, that there has been any other lawsuit involving
Plaintiff or Defendants concerning her lease besides the^Grant County case which was dismissed
B
J
d
l
—
^^fore^triaj. (ECF 15-8). Plaintiff seems to actually be requesting that Defendants admit that
such a document does not exist—that is to say, that there has been no judicial determination she
has violated her lease. (See ECF 69 at 2 (“[Defendants’ counsel] needs to state that no service of
any violation ever took place,....”)). Such a reading, however, is far from clear from the text of
the request and is not within the scope of Rule 34—which again is limited to documents and.
things in Defendants’ custody or control.
Plaintiff also seems to doubt the authenticity of the documents produced—specifically,
the two “friendly reminder” documents. (ECF 69 at 7 (“I argued that the friendly reminders
were never issued to me and I have disputed [this] from the first time I ever saw them in [the
lower court.”)). That being said, itis ngj. clear what that issue—whether or not Plaintiff saw
those two documents before now—has to do with discovery. As discussed in greater detail
14
d
' • USDC
IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 15 of 25
<«.
below, Plaintiff is free to attack the admissibility of the documents and how much weight they
should be afforded in future proceedings. That, though, is a dispute for another time.
v.
Accordingly, Plaintiffs motion as to Item 9 is DENED.
\
viii. Plaintiffs Arguments as to the Request for Admissions
Through much of her motion, Plaintiff also accuses Defendants Naomi Friedrichsen and
Erika Holliday, as well as their attorney Brittney Rykovich, of committing perjury and lying to
the Court. (ECF 69 at 7-8). For example, in her first request for admissions as to Defendant
Friedrichsen, Plaintiff requested that Friedrichsen admit that she “perjured [herjself (LIED under
oath) at some point any point during [her] testimony in lower court.” (ECF 63 at 1). Defendants
objected to the request as unintelligible and to the extent that it called for a legal conclusion, but
otherwise denied the allegation. (ECF 66 at 3). Plaintiff also requested that Defendant
Friedrichsen admit she had accused Plaintiff of having multiple unauthorized occupants in her
apartment, to which Defendants responded that the April 19, 2017, letter and 30-day notice to
vacate “speaks for itself.” (ECF 66 at 3; ECF 64-2 at 8). Plaintiff similarly requested that
Defendant Friedrichsen admit that she “never witnessed unauthorized occupants living in
[Plaintiffs] home prior to April 19, 2017.” (ECF 66 at 3). Plaintiff now asserts that Defendant
Friedrichsen—in addition to perjuring herself in the Grant County case—perjured herself in
denying and objecting to these requests for admission. (ECF 69 at 8).
Plaintiffdoes not attach any transcript from the “lower court”—which the Court assumes
to be the Grant County Superior Court—but believes that Plaintiff is reiterating the arguments
she first raised in support of her partial motion for summary judgment. (ECF 36). In particular,
Plaintiff filed an “Affidavit Testimonies from Lower Court” in which she included a portion of
the transcript of Defendant Friedrichsen’s testimony from the Grant County case. (ECF 37).
15
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 16 of 2§
At least as .to the first two requests for admission posed to Defendant Friedrichsen, the
basis of Plaintiff s accusation of perjury seems to be as follows: In the Grant County case, the
trial court held a preliminary possession hearing on June 8, 2017, pursuant to Indiana Code § 3230-3-5. (ECF 15 at 2; see also ECF 15-4). At the hearing, Defendant Friedrichsen testified on
direct examination that “it was reported to [her] by [her] assistant and [she] also witness [ed] it as
well that there has [sic] been additional people and potential occupants in [Plaintiffs]
apartment.” (ECF 37 at 8). Defendant Friedrichsen also testified that the April 19, 2017, letter
and 30-day notice (ECF 64-2 at 8) “was a result of various lease violations plus [Plaintiff] had
what we thought was an unauthorized occupant” (ECF 37 at 15). On cross examination, though,
..................,fl
Defendant Friedrichsen testified that she personally had “only noticed one [unauthorized
occupant].” (Id. at 38). Plaintiff then sought to compare Defendant Friedrichsen’s statement on
^
cross examination (ECF 37 at 39), with the April 19, 2017, letter where Defendant Friedrichsen O&Ht&hfC-T
t
.
7 ‘SgT?
wrote “we have reason to believe that you have unauthorized occupants in your apartment” (ECF ^ c;
64-2 at 8; see also ECF 37 at 3).
For a variety of reasons, the Court concludes that Defendant Friedrichsen’s responses td> ^
these requests for admission do not warrant sanctions and that her objections were justified. Fed.
R. Civ. P. 36(a)(6). First and foremost, Defendants did in fact respond to the request for
admission—denying the request. Further, Defendants’ objection—that the request called for a
legal conclusion—is proper. Perjury is a crime. Whether someone did or did not commit a
crime is a legal conclusion. See Wimpye v. AKSteel, No. l:ll-CV-844, 2013 WL 3148234, at
*2 n.3 (S.D. Ohio June 19, 2013), R&R adopted, No. C-l-11-844, 2013 WL 3975760 (S.D. Ohio
Aug. 1, 2013) (“[Pjlaintiff s conclusory allegation that AK Steel is guilty of discriminatory
16
y
1
USDC iN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 16 of 25
At least as to the first two requests for admission posed to Defendant Friedrichsen, the
basis of Plaintiff s accusation of perjury seems to be as follows: In the Grant County case, the
trial court held a preliminary possession hearing on June 8, 2017, pursuant to Indiana Code § 3230-3-5. (ECF 15 at 2; see also ECF 15-4). At the hearing, Defendant Friedrichsen testified on
-V
direct examination that “it was reported to [her] by [her] assistant and [she] also witness [ed] it as
well that there has [sic] been additional people and potential occupants in [Plaintiffs]
apartment.” (ECF 37 at 8). Defendant Friedrichsen also testified that the April 19, 2017, letter
and 30-day notice (ECF 64-2 at 8) “was a result of various lease violations plus [Plaintiff] had
what we thought was an unauthorized occupant” (ECF 37 at 15). On cross examination, though,
................ *..
Defendant Friedrichsen testified that she personally had “only noticed one [unauthorized
occupant].” (Id. at 38). Plaintiff then sought to compare Defendant Friedrichsen’s statement on
...
.
cross examination (ECF 37 at 39), with the April 19, 2017, letter where Defendant Friedrichsen C
wrote “we have reason to believe that you have unauthorized occupants in your apartment” (ECF
64-2 at.8; see also ECF 37 at 3).
__
*
’
_______ i---------- ------ --------- ——---- ————
For a variety of reasons, the Court concludes that Defendant Friedrichsen’s responses t<£>uthese requests for admission do not warrant sanctions and that her objections were justified. Fed.
R. Civ. P. 36(a)(6). First and foremost, Defendants didlh fact respond to the request for
admission—denying the request. Further, Defendants’ objection—that the request called for a
legal conclusion—is proper. Perjury is a crime. Whether someone did or did not commit a
crime is a legal conclusion. See Wimpye v. AKSteel, No. l:ll-CV-844, 2013 WL 3148234, at
*2 n.3 (S.D. Ohio June 19, 2013), R&R adopted, No. C-l-11-844, 2013 WL 3975760 (S.D. Ohio
Aug. 1,2013) (“[Pjlaintiff s conclusory allegation that AK Steel is guilty of discriminatory
16
if,
■
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 17 of 25
practices is a legal conclusion.. .. ”). “Requests to admit may not be used to establish legal
conclusions.” Sommerfield, 251 F.R.D. at 355.
Further, “[a] defendant commits perjury if, while testifying under oath, [s]he gives false
testimony concerning a material matter with the willful intent to Drovide false testimony: rather
than as a result^of confusion, mistake^ or Jauhy memory.” United States v. Riney, 742 F.3d 785,
790 (7th Cir. 2014) (citation and internal quotation marks omitted). There is nothing in the
•
‘.N
record to suggest that Defendant Friedrichsen’s statements in the April 19, 2017, letter were
made under oath, and she testified in the Grant County case that the suggestion she had
4 is
I^ v
4
personally observed multiple occupants—as opposed to the one she supposedly had firsthand iP ,
------------------”
"
'
\
t, k°&
knowledge of—was made by mistake. (ECF 37 at 39). Similarly, whether or not Defendant J
Friedrichsen had firsthand knowledge of multiple unauthorized occupants does not appear to
r^j
&-
y r
^
f^s of**
‘
&
have been particularly material to the proceeding in the Grand County case, or the proceedings
currently before this Court
4\v.;e, c&u-A
t M. 'f M *.
cate#
Care **4$
to
exami Are
«#—
While Plaintiff raises similar arguments regarding the state-court testimony of Defendant jno^ / 4
Holliday, she fails to attach any supporting transcripts.7 In any event, though, Plaintiffs attacks
' ) \ ■ ''
on Defendants’ credibility are not within the purview of a motion to compel. At trial, Plaintiff
will be able—within in the bounds of the Federal Rules of Evidence—to question Defendants
about prior inconsistent statements. See Fed. R. Evid. 613. For each of the requests for
admissions, though, Defendants answered, denied, or objected. {See ECF 66 through ECF 68).
As explained above, each of these responses are acceptable. Plaintiff may disagree with
Defendants’ answers and may disagree with Defendants’ version of the events, but neither of
7 Plaintiff does provide an “affidavit” summarizing what the supposed testimony was. (ECF 37). The Court,
however, declines to impose sanctions based solely on Plaintiff’s recollection of what the state court testimony was.
17
i
U,f T?
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 18 of,25.
these issues are grounds for a motion to compel. See Braithwaite v. Bille, No. 17-CV-706-PP,
2020 WL 4934586, at *7 (E.D. Wis. Aug. 24, 2020) (“The fact that the defendants disagree with
.
l
the plaintiff, or that they do not remember the incident the way the plaintiff does, does not mean £ • j
5
that they are lying under oath. It is not the court’s job, or even the plaintiffs, to decide whose
t4>
version of events is the most credible. That is the jury’s job.”); see also Hashim, 2016 WL
6208532, at *2.
ef
ix. Plaintiffs Request for Sanctions
do t'i
■s Te.nuct
m
S'crf"
"f i e
S’
As mentioned, Plaintiff also requests that sanctions be imposed on Defendants and their
^
(fij
counsel. (ECF 69 at 10). In general, Rule 37(b)(2)(A) permits the Court to imposes sanctions on
U>vvf4 ,£>f^
a party which “fails to obey an order to provide or permit discovery, including an order under
Rule 26(f), 35, or 37(a)... .” While not always necessary, a successful motion to compel
|
“usually precedes the imposition of Rule 37(b) sanctions . . ..” Tamari v. Bache & Co.
(Lebanon) S.A.L., 729 F.2d 469, 472 (7th Cir. 1984). Because Plaintiffs motion to compel (ECF
4-1.€ 1
69) is denied, and because Defendants have not otherwise failed to comply with an order to
K-rvey^
permit discovery, sanctions pursuant to Rule 37(b) are inappropriate.
5
/
It is possible that Plaintiff is requesting sanctions be imposed pursuant to Rule 37(c) for
Defendants’ alleged lack of truthfulness in responding to Plaintiffs requests for admission. Such
sanctions, however, are premature. If at trial Plaintiff is able to establish the truth of a request
C^Sr/
for admission that was denied, Plaintiff could again move for sanctions under Federal Rule
37(c)(2). See APC Filtration, Inc. v. Becker, No. 07 C 1462, 2007 WL 3046233, at *2 (N.D. Ill.
Oct. 12, 2007) (“Federal Rule of Civil Procedure 37(c)(2) provides for sanctions ‘[i]f a party
fails to admit... the truth of any matter as requested under Rule 36, and if the party requesting
the admissions thereafter proves ... the truth of the matter.’ Therefore, the proper time for APC
18
’ USDC. IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 18 of 25
these issues are grounds for a motion to compel. See Braithwaite v. Bille, No. 17-CV-706-PP,
2020 WL 4934586, at *7 (E.D. Wis. Aug. 24, 2020) (“The fact that the defendants disagree with
the plaintiff, or that they do not remember the incident the way the plaintiff does, does not mean
that they are lying under oath. It is not the court’s job, or even the plaintiffs, to decide whose
.
y
+Li±
version of events is the most credible. That is the jury’s job.”); see also Hashim, 2016 WL
6208532, at *2.
ix. Plaintiffs Request for Sanctions
C-
• Q. Y
af-ter dej-e-ncla '
As mentioned, Plaintiff also requests that sanctions be imposed on Defendants and their
|\|£f \/\f
counsel. (ECF 69 at 10). In general, Rule 37(b)(2)(A) permits the Court to imposes sanctions on
a party which “fails to obey an order to provide or permit discovery, including an order under
Rule 26(f), 35, or 37(a) ... .” While not always necessary, a successful motion to compel
|
“usually precedes the imposition of Rule 37(b) sanctions ....” Tamari v. Bache & Co.
4\,e
(Lebanon) S.A.L., 729 F.2d 469, 472 (7th Cir. 1984). Because Plaintiffs motion to compel (ECF
Knew'
69) is denied, and because Defendants have not otherwise failed to comply with an order to
permit discovery, sanctions pursuant to Rule 37(b) are inappropriate.
tb
5
1
K
It is possible that Plaintiff is requesting sanctions be imposed pursuant to Rule 37(c) for
Defendants’ alleged lack of truthfulness in responding fdtPlaintiff s requests for admission. Such
sanctions, however, are premature. If at trial Plaintiff is able to establish the truth of a request
for admission that was denied, Plaintiff could again move for sanctions under Federal Rule
37(c)(2). See APC Filtration, Inc. v. Becker, No. 07 C 1462, 2007 WL 3046233, at *2 (N.D. Ill.
Oct. 12, 2007) (“Federal Rule of Civil Procedure 37(c)(2) provides for sanctions ‘ [i]f a party
fails to admit... the truth of any matter as requested under Rule 36, and if the party requesting
the admissions thereafter proves ... the truth of the matter.’ Therefore, the proper time for APC
18
I
pLU^<
■$'
USDC 'IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 19 of 25
to move for sanctions based on Becker and SourceOne’s responses to APC’s requests to admit
will come only after the finder of fact determines the truth of the matter. Because this has not
occurred (and is not certain to occur) the Court does not impose sanctions on this basis.”)- At
least at this point, though, Plaintiffs request for sanctions is DENIED.
x. Plaintiffs Request to “Exclude” Evidence
Plaintiff also requests that the Court exclude Defendants’ discovery responses due to
Defendants’ various objections. (ECF 69 at 8). Plaintiff, however, does not cite any authority in
support of her request. To the extent that Plaintiff is requesting that Defendants be prohibited
“from introducing designated matters in evidence” as a sanction pursuant to Federal Rule
37(b)(2)(A)(ii), for the reasons already discussed, such sanctions are not warranted on this
record.
To the extent that Plaintiff believes that Defendants’ discovery responses are not
admissible evidence, her request to exclude is premature. Discovery is a collaborative process
between the parties, “designed to facilitate both the preparation for and the trial of cases.”
United States v. Am. Locomotive Co., 6 F.R.D. 35, 37 (N.D. Ind. 1946). “[Rjelevancy in the
discovery context is broader than in the context of admissibility.” Piacenti v. Gen. Motors
Corp., 173 F.R.D. 221, 224 (N.D. Ill. 1997). “Information within [the] scope of discovery need '
not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Because Plaintiff is
a pro se party, the parties are required to file their discovery requests and responses pursuant to
Northern District of Indiana Local Rule 26-2(a)(2), but this does not mean that the Court has
considered the eventual admissibility of any of the discovery materials filed.
This Court’s Local Rules only contemplate parties filing discovery materials pertaining to
discovery disputes pursuant to Federal Rules of Civil Procedure 26(c) or 37 and materials “that
19
USDC iN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 20 of 25
the party relies on to support a motion that could result in a final order on an issue.” N.D. Ind.
L.R. 26-2(b)-(c). Here, the Court has only considered Defendants’ discovery responses to the
extent that they bear on Plaintiffs motion to compel. (ECF 69). It has not, however, considered
the admissibility or weight to be afforded to any discovery response. If Defendants were to file
discovery materials in support of a motion for summary judgment which Plaintiff believes are
not admissible, she is free to object to such evidence then. Fed. R. Civ. P. 56(c)(2); see also
Cehovic-Dixneufv. Wong, 895 F.3d 927, 931 (7th Cir. 2018) (“In the briefing on a motion for
summary judgment, either side may object that the other’s evidence cannot be presented in a
form that would be admissible in evidence.” (citation and internal quotation marks omitted)).
Similarly, Plaintiff is free to object to the admissibility of evidence before trial by way of a
motion in limine or at trial. See Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D.
Ind. 2000). However, at this time, the Court sees no need to exclude Defendants’ discovery
responses or otherwise strike them from the record.
2. Defendants ’ Motion to Compel
i. Defendants’ Arguments Regarding Plaintiffs Deposition
As mentioned, Defendants have also filed a motion seeking to compel Plaintiffs
attendance at her own deposition. (ECF 72). Plaintiff, in response, contends that her deposition
should be postponed until after Defendants have fully complied with her discovery requests.
(ECF 75 at 2; see also ECF 73-2, ECF 73-3). Plaintiffs argument, however, has no support in
the Federal Rules of Civil Procedure or the relevant caselaw.
Pursuant to Federal Rule 30(a)(1), Defendants may “depose any person, including a
party, without leave of court....” That being said, the “party who wants to depose a person by
oral questions must give reasonable written notice to every other party,” with such notice
20
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 20 of 25
the party relies on to support a motion that could result in a final order on an issue.” N.D. Ind.
L.R. 26-2(b)-(c). Here, the Court has only considered Defendants’ discovery responses to the
extent that they bear on Plaintiffs motion to compel. (ECF 69). It has not, however, considered
the admissibility or weight to be afforded to any discovery response. If Defendants were to file
discovery materials in support of a motion for summary judgment which Plaintiff believes are
not admissible, she is free to object to such evidence then. Fed. R. Civ. P. 56(c)(2); see also
Cehovic-Dixneuf v. Wong, 895 F.3d 927, 931 (7th Cir. 2018) (“In the briefing on a motion for
summary judgment, either side may object that the other’s evidence cannot be presented in a
form that would be admissible in evidence.” (citation and internal quotation marks omitted)).
Similarly, Plaintiff is free to object to the admissibility of evidence before trial by way of a
motion in limine, or at trial. See Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D.
Ind. 2000). However, at this time, the Court sees no need to exclude Defendants’ discovery
responses or otherwise strike them from the record.
2. Defendants ’ Motion to Compel
i. Defendants’ Arguments Regarding Plaintiffs Deposition
As mentioned, Defendants have also filed a motion seeking to compel Plaintiffs
attendance at her own deposition. (ECF 72). Plaintiff, frl response, contends that her deposition
should be postponed until after Defendants have fully complied with her discovery requests.
(ECF 75 at 2; see also ECF 73-2, ECF 73-3). Plaintiffs argument, however, has no support in
the Federal Rules of Civil Procedure or the relevant caselaw.
Pursuant to Federal Rule 30(a)(1), Defendants may “depose any person, including a
party, without leave of court....” That being said, the “party who wants to depose a person by
oral questions must give reasonable written notice to every other party,” with such notice
20
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US'DC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 21 of 25
including the “time and place of the deposition, and if known, the deponent’s name and address.”
Fed. R. Civ. P. 30(b)(1). Finally, the notice must state “the method for recording the testimony.”
Fed. R. Civ. P. 30(b)(3)(A). In general, “a failure [of a party to attend its own deposition] is not
excused on the ground that the discovery sought was objectionable ... .” Fed. R. Civ. P.
37(d)(2).
Here, Defendants filed a notice of deposition in compliance with Rule 30 on October 9,
2020. (ECF 65). Plaintiff, however, failed to respond to the notice. Instead, Plaintiff emailed
Defendants’ counsel explaining that she would not attend her deposition until Defendants
cooperated with her discovery requests. (See ECF 73-2, 73-3). Plaintiff, however, cannot delay
responding to Defendants’ discovery requests merely because she believes that Defendants have
not been forthright in responding to hers. Williams v. Biomet, Inc., No. 3:12-MD-2391RLMMGG, 2019 WL 6117594, at *3 (N.D. Ind. Nov. 15, 2019) (“The prematurity argument seems to
be based on the proposition that Biomet must complete its own discovery before it can respond
to Ms. Williams’s discovery requests. Biomet’s position has no basis in the law.”); see also
Hendrickson v. Wal-Mart Stores Inc., No. 17-C-1680, 2019 WL 1877227, at *1 (E.D. Wis. Apr.
26, 2019) (“By failing to attend his deposition, Hendrickson has thwarted Wal-Mart’s efforts to
conduct discovery and defend against his claims. Hendrickson has provided no reason for the
court to believe that his failure to appear for his deposition was substantially justified. His
conduct is nothing short of a willful disregard of his discovery obligations.”).
In summary, Plaintiff has not shown that she is entitled to postpone or otherwise delay
her deposition. As already discussed, the Court does not find that Defendants’ objections to
Plaintiffs various discovery requests constitute “bad faith.” See Lannett Co., 2 F.R.D. at 562.
Further, discovery disputes—on their own—do not justify a party’s failure to attend her own
21
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 22 of.25
*■
deposition. Accordingly, Defendants’ motion to compel (ECF 72) is GRANTED. Plaintiff is
ORDERED to work with Defendants to schedule a deposition within 21 days of this Order.
ii. Defendants’ Request for Fees
Defendants also request that Plaintiff be ordered to pay the “costs and fees incurred ... as
a result of Plaintiff s bad faith in cancelling her previously noticed deposition.” (ECF 73 at 3).
Rule 37 contemplates sanctions both for failing to attend a deposition and for opposing a motion
to compel. Indeed, Rule 37 presumptively requires the loser “to make good the victor’s costs.”
Rackemann v. LISNR, Inc., No. l:17-cv-00624-MJD-TWP, 2018 WL 3328140, at *2 (S.D. Ind.
July 6, 2018) (citation and internal quotation marks omitted). Pursuant to Rule 37(d), the Court
may order a party who “fails, after being served with proper notice, to appear at [her] deposition”
to pay “the reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was not substantially justified or other circumstances make an award of expenses unjust.”
Rule 37(a) also provides that “the [C]ourt must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion [to compel] ... to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed.
R. Civ. P. 37(a)(5)(A). The Court, however, will not order the payment of fees if “(i) the movant
filed the motion before attempting in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A)(i)-(iii); see also Steadfast Ins. Co. v. Auto Mktg. Network, Inc., No. 97 C 5696, 1999
WL 446691, at *1 (N.D. Ill. June 23, 1999). “The burden of persuasion is on the losing party to
avoid assessment of expenses and fees, rather than on the winning party [to] obtain such an
22
>
•
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 22 of 25
deposition. Accordingly, Defendants’ motion to compel (ECF 72) is GRANTED. Plaintiff is
ORDERED to work with Defendants to schedule a deposition within 21 days of this Order.
ii. Defendants’ Request for Fees
Defendants also request that Plaintiff be ordered to pay the “costs and fees incurred ... as
a result of Plaintiff s bad faith in cancelling her previously noticed deposition.” (ECF 73 at 3).
Rule 37 contemplates sanctions both for failing to attend a deposition and for opposing a motion
to compel. Indeed, Rule 37 presumptively requires the loser “to make good the victor’s costs.”
Rackemann v. LISNR, Inc., No. l:17-cv-00624-MJD-TWP, 2018 WL 3328140, at *2 (S.D. Ind.
July 6, 2018) (citation and internal quotation marks omitted). Pursuant to Rule 37(d), the Court
may order a party who “fails, after being served with proper notice, to appear at [her] deposition”
to pay “the reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was not substantially justified or other circumstances make an award of expenses unjust.”
Rule 37(a) also provides that “the [C]ourt must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion [to compel]... to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed.
R. Civ. P. 37(a)(5)(A). The Court, however, will not order the payment of fees if “(i) the movant
filed the motion before attempting in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party’s nondisclosure, response^ or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A)(i)-(iii); see also Steadfast Ins. Co. v. Auto Mktg. Network, Inc., No. 97 C 5696, 1999
WL446691, at *1 (N.D. Ill. June 23, 1999). “The burden of persuasion is on the losing party to
avoid assessment of expenses and fees, rather than on the winning party [to] obtain such an
i
22
4-
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 24 of.25.
Rules of Civil Procedure, and specifically the rules pertaining to discovery, as a licensed
attorney”). Therefore, on this record, an award of fees incurred by Defendants as a result of
Plaintiffs failure to attend her deposition and in preparing their motion to compel appears to be
appropriate.
“Nevertheless, the Court still must be satisfied that the amount requested in obtaining the
order on the motion to compel is reasonable.” Priest v. Brummer, No. 1:06-CV-65, 2007 WL
2904086, at *2 (N.D. Ind. Oct. 3, 2007). Here, though, Defendants have not set forth the
amount of fees they seek to recover, or the means used to calculate that amount. See id. (“The
Plaintiff, however, does not tell us anything about the copying costs she seeks to have assessed,
such as when or why they were incurred, the number of pages copied or the per page charge, and
thus we have no way of determining whether the copying expenses are reasonable.” (citation
omitted)). Accordingly, Defendants are directed to file an affidavit detailing the amount of fees
they seek to recover and how they arrived at that amount. Because Plaintiff did not directly
address the appropriateness of Defendants’ fee request in her filings, she will be permitted to file
a response to Defendants’ affidavit to explain what—if any—special circumstances make an
award of fees unjust.
C. Conclusion
In summary, Plaintiffs motion to compel (ECF 69) is DENIED. The parties are
ENCOURAGED, however, to work together—especially as it relates to Plaintiffs Item 1—to
narrow their requests and objections. Defendants’ motion to compel (ECF 72), on the other
hand, is GRANTED. Defendants provided proper notice of Plaintiff s deposition in accordance
with Federal Rule 30. Further, while parties may object to discovery requests consistent with the
Federal Rules of Civil Procedure, Plaintiff has not identified any legal basis for her refusal to
24
' USDC. IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 24 of 25
Rules of Civil Procedure, and specifically the rules pertaining to discovery, as a licensed
attorney”). Therefore, on this record, an award of fees incurred by Defendants as a result of
Plaintiffs failure to attend her deposition and in preparing their motion to compel appears to be
appropriate.
“Nevertheless, the Court still must be satisfied that the amount requested in obtaining the
order on the motion to compel is reasonable.” Priest v. Brummer, No. 1:06-CV-65, 2007 WL
2904086, at *2 (N.D. Ind. Oct. 3, 2007). Here, though, Defendants have not set forth the
amount of fees they seek to recover, or the means used to calculate that amount. See id. (“The
Plaintiff, however, does not tell us anything about the copying costs she seeks to have assessed,
such as when or why they were incurred, the number of pages copied or the per page charge, and
thus we have no way of determining whether the copying expenses are reasonable.” (citation
omitted)). Accordingly, Defendants are directed to file an affidavit detailing the amount of fees
they seek to recover and how they arrived at that amount. Because Plaintiff did not directly
address the appropriateness of Defendants’ fee request in her filings, she will be permitted to file
a response to Defendants’ affidavit to explain what—if any—special circumstances make an
award of fees unjust.
C. Conclusion
In summary, Plaintiffs motion to compel (ECF 69)? is DENIED. The parties are
ENCOURAGED, however, to work together—especially as it relates to Plaintiffs Item 1—to
narrow their requests and objections. Defendants’ motion to compel (ECF 72), on the other
hand, is GRANTED. Defendants provided proper notice of Plaintiff s deposition in accordance
with Federal Rule 30. Further, while parties may object to discovery requests consistent with the
Federal Rules of Civil Procedure, Plaintiff has not identified any legal basis for her refusal to
24
USDC IN/ND case l:19-cv-00307-WCL-SLC document 80 filed 01/19/21 page 25 of 25
attend her deposition. Accordingly, Plaintiff is ORDERED to work with Defendants to schedule
a deposition within 21 days of this Order. Additionally, Defendants’ request for fees (EOF 72) is
provisionally GRANTED. Defendants are DIRECTED to file an affidavit detailing their fee
calculation within 14 days of this Order. Plaintiff is permitted to file a response within 14 days
of receiving Plaintiffs affidavit.
SO ORDERED.
Entered this 19th day of January 2021.
/s/ Susan Collins_________
Susan Collins
United States Magistrate Judge
25
t
I Cl
3 u\
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SANDRA BLACK,
Plaintiff,
v.
NAOMI FRIEDRICHSEN, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. l:19-cv-00307-WCL-SLC
ORDER
On July 29, 2021, the Court held a hearing to address a variety of pending motions. (ECF
139-141; see also ECF 108, 114, 117, 120, 121). For the following reasons, and for the reasons
stated on the record, the Court rules as follows:
•
Pro se Plaintiffs motion requesting the Court “JUDICIALLY RECOGNIZE THIS
DISCRIMINATION CASE AS one POSSIBLE RESOLUTION TO A NATIONAL
CRISIS REQUIRING NATIONAL PRESS EXPOSURE” (ECF 114) is DENIED. As
the Court explained on record, this matter and its docket are already open to the public.
See Goeselv. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013).
•
Plaintiffs “MOTION TO WARN AND DISCIPLINE DEFENDANT NAOMI
FRIEDRICHSEN for PERJURY” (ECF 117) is DENIED. As explained on the record,
Plaintiff will have the opportunity to prove her factual allegations if and when this case
proceeds to trial.
o Further, Plaintiff has not established good cause for maintaining the document
entitled “TEMPORARY PROTECTED PRIVACY SEALED FROM
DEFENDANTS PROOF OF PERJURY” (ECF 116) filed in support of her
motion (ECF 117) under seal. Accordingly, the Clerk is DIRECTED to unseal
that document (ECF 116).
•
Defendants’ motion (ECF 120) requesting entry of a proposed protective order (ECF 1202) is GRANTED to the extent set forth in this Order. The proposed order submitted by
Defendants is APPOVED and ADOPTED as an Order of this Court, PROVIDED,
HOWEVER, that:
o As set forth in Paragraph VII.B., nothing in the Order authorizes either party to
file or maintain any document under seal.1 That is, NO DOCUMENT OR
PORTION OF A DOCUMENT WILL BE MAINTAINED UNDER SEAL IN
THE ABSENCE OF AN AUTHORIZING STATUTE, COURT RULE, OR
FURTHER LEAVE OF COURT. See N.D. Ind. L.R. 5-3;
o While the Order will remain in force after the termination of the suit as set forth in
Paragraphs X.A and XIII, the Court will not retain jurisdiction over the Order, as
the Court is unwilling to enter a protective order that suggests it retain jurisdiction
of any kind after resolution of the case. See EEOC v. Clarice's Home Care Serv.,
Inc., No. 3:07-cv-601 GPM, 2008 WL 345588, at *2 (S.D. Ill. Feb. 7, 2008)
(encouraging the parties to make a contractual agreement among themselves for
the return of sensitive documents without court oversight); see also Large v.
Mobile Tool Int 7, Inc., No. 1:02-CV-177, 2010 WL 3120254, at *1 (N.D. Ind.
Aug. 6, 2010); and
o The provision in Paragraph X.B. requiring the return or destruction of confidential
information at the conclusion of this litigation will not apply to the Court.
•
Plaintiffs “MOTION TO COMPEL DEFENDANTS to PRODUCE and DELIVER
PRODUCTION” (ECF 121) is DENIED AS MOOT in light of the Court’s ruling on
Defendants’ motion requesting entry of the proposed protective order (ECF 120), as
Defendants agreed to produce the requested material given that the protective order was
approved.
i«
[T]he same scrutiny is not required for protective orders made only for discovery as for those that permit sealed
filings.” Containment Techs. Grp., Inc. v. Am. Soc’y ofHealth Sys. Pharmacists, No. l:07-cv-997, 2008 WL
4545310, at *3 (S.D. Ind. Oct. 10, 2008). The Court observes that the definition of “Confidential Information,”
“Protected Material,” and “Attorneys’ Eyes Only Information in the Order (ECF 120-2 at 2-4) would be overly
broad if the proposed order permitted sealed filings—a point that the parties should bear in mind in the event they
seek leave of Court to file any documents under seal.
2
•
Finally, Defendants’ motion to extend case management deadlines (ECF 108)—as
modified by Defendants’ counsel on the record—is GRANTED. Accordingly, Plaintiff is
afforded to and including August 12, 2021, to file any new or supplemental Rule 26(a)(2)
expert reports.2 Defendant is afforded to and including September 13, 2021, to file their
Rule 26(a)(2) expert reports. The discovery deadline is extended to October 24, 2021,
and the dispositive motion deadline is extended to November 23, 2021.
In summary, Plaintiffs motions discussed supra (ECF 114, ECF 117, ECF 121) are
DENIED. Further, the Clerk is DIRECTED to unseal Plaintiffs “proof of perjury” document
(ECF 116). Defendants’ motions seeking entry of a proposed protective order (ECF 120) and an
extension of the case management deadlines (ECF 108) are GRANTED to the extent provided
for in this Order.3
SO ORDERED.
Entered this 30th day of July 2021.
/s/ Susan Collins
Susan Collins
United States Magistrate Jude
2 The Court recognizes that Plaintiff has already filed an expert report on April 28, 2021. (ECF 104).
3 Defendants’ motion requesting a temporary restraining order, preliminary injunction, and sanctions (ECF 128) is
not before the Magistrate Judge.
3
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i.
6/14/2017 1$l£|nFftM SCANNED
I
STATE OF INDIANA
COUNTY OF GRANT
IN THE GRANT SUPERIOR COURT 3
)
) SS:
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[Originally Case No. 27D03-1705-SC-000517]
CASE NO. 27 D03-1706-PL-000014
i
HUNTER'S; RUN APARTMENTS LP,the Plaintiff
FILED
JUN 1 4 2017
V.
SANDRA A- BLACK, the Defendant
Q'tytecHUt
CLERK GSC3 v
Denial of Motion for Preliminary Order of Possession
The Court denies the Rule to Show Cause sought by the Plaintiff, Hunter's Run Apartments LP
("Landlorc"), against the Defendant, Sandra A. Black ("Tenant"). Based upon the evidence
presented at the June 8, 2017, preliminary hearing, the Court enters this preliminary finding
that therejis a reasonable probability Tenant is entitled to the continued possession, use and
enjoyment of her apartment, which is known as 655 E Hunter's Run Dr; Marion IN 46953 ("the
Apartment"). [See Ind. Code § 32-30-3-5.] The Court makes the following additional preliminary
findings to assist Landlord and Tenant ("the Parties"):
1.
On May 23, 2017, Landlord filed its Complaint for Possession of Real Property and Past
Due Rent ("the Original Complaint") as a small claims proceeding in Case No.
27D03-1705-SC-000517 ("the Small Claims Case"). Landlord alleged it was entitled to
possession of the Apartment for the following reason:
1 2.
Violation of Lease Agreement - allowing unauthorized occupants to live
at apartment.
No other basis for the eviction proceeding was alleged.
2.
On May 31, 2017, Tenant filed her Request for Recusal, which was denied on June 1,
20!j. In doing so the Court relies upon the Indiana Commission on Judicial Qualifications'
Advisory Opinion #3-07, which dealt with the issue of:
i
l
i whether a judge should disqualify from a case involving a litigant who files a
disciplinary complaint or a lawsuit against the judge or who publicly criticizes or
attacks the judge through fliers, websites, blogs, or other written material.
The Court is aware that Tenant has been and remains very unhappy with decisions the
Court made in the past concerning Tenant's mother. Tenant has exercised her 1st
Amendment right to publically criticize the Judge. Because the Court has no actual bias
against Tenant and the Court does not believe a factual basis exists for a conclusion that
the Court acted inappropriately in other matters involving Tenant, recusal in this case
would be improper. Quoting from Advisory Opinion #3-07:
June 14, 2017, Revision
l
Page 1 of 8
hunters run and black preliminary order
6/14/2017 1:21 PM SCANNED
(T)he issue is whether an objective person, knowledgeable of all the
circumstances, would have a reasonable basis for doubting the judge's
impartiality. Unless disqualification is required, Canon 3B(1) of the Code of
Judicial Conduct requires a judge to hear and decide all assigned cases.
Neither Tenant nor Landlord filed for a change of venue from the judge pursuant to Ind.
Trial Rule 76(B).
3.
On May 31, 2017, Tenant also filed her Request for Trial by Jury. She was served on
May 25, 2017, with her copy of the Original Complaint, so her request was filed in a
timely manner. Oh June 1, 2017, the Court entered the following Chronological Case
Summary ("CCS") entry:
(Tenant) has timely filed her demand for trial by jury. Ind. Small Claims Rule
4(C) provides: "Request for Jury Trial.... (A) defendant may request a jury trial
by submitting a written request to the court within ten (10) days after receipt
of the notice of claim. No statement of facts supporting the request or
verification of the request is required. The party requesting a jury trial shall
pay the clerk the additional amount required by statute to transfer the claim
to the plenary docket.... Once a jury trial request has been granted, it may
not be withdrawn without the consent of the other party or parties." The
Sheriff's return of service indicates (Tenant) was served with the notice of
claim on May 25, 2017. (Tenant) has 10 days from that date to pay the
additional fee to transfer the case to the plenary docket. If she fails to do so,
her request for trial by jury will be denied.
Tenant paid the $70 fee and the case was transferred to the Court's plenary docket and
assigned Case No. 27D03-1706-PL-000014 on June 5, 2017. This means the Parties must
comply with the Indiana Rules of Trial Procedure and will no longer be permitted to
proceed under Ind. Small Claims Rule 8(A), which states:
Procedure. The trial shall be informal, with the sole objective of dispensing
speedy justice between the parties according to the rules of substantive law,
and shall not be bound by the statutory provisions or rules of practice,
procedure, pleadings or evidence except provisions relating to privileged
communications and offers of compromise.
Because this case is now on the Court's plenary docket, the trial will be formal. It will be
done according to statutory provisions and the Ind. Trial Rules. The Parties must properly
plead their case(s) and fully comply with the Ind. Evidence Rules.
4.
The June 1, 2017 CCS entry also included the following:
The jury trial demand does not divest the Court of the jurisdiction to enter a
preliminary order of possession, if (Landlord) presents facts supporting such
an order. Therefore the hearing set for Thursday, June 8, 2017, at 9:15 a.m.
will be held.
June 14,2017, Revision
Page 2 of 8
hunters run and black preliminary order
6/14/2017 1:21 PM SCANNED
I
I
The Court, not a jury, is to hear and decide matters involving requests for pre-judgment
orders of possession. Bishop v. Hous. Aut. ofS. Bend, 920 N.E.2d 772 (Ind. Ct. App. 2010)
dealt with this issue saying:
i
I We read the Indiana ejection statute to preserve Bishop's right to a jury trial i on the ultimate outcome, i.e., the merits of HASB's claim that it is entitled to
possession based upon her breach of an express term of the lease. ,...
Similarly, Indiana's ejectment statute provides for a pre-judgment possession
hearing to allow the defendant to controvert plaintiffs affidavit "or to show
| cause why the judge should not remove the tenant from the property and put
i the plaintiff in possession." I.C. § 32-30-3-2; see also Cunningham v.
J Georgetown Homes, Inc., 708 N.E.2d 623, 627 (Ind. Ct. App. 1999). The
I statutory hearing manifests the inherent power of trial courts to intercede at
an early stage - to make a preliminary decision before what could thereafter
be a lengthy judicial process. Before issuance of a preliminary decision, the
defendant/tenant is given the express opportunity to dispute the landlord's
claim for immediate possession. Moreover, this preliminary possession
decision triggers the requirement that the plaintiff/landlord file "a surety...
in an amount sufficient to assure the payment of any damages the defendant
may suffer if the court wrongfully.ordered" preliminary possession to the
landlord. I.C. § 32-30-3-6. The preliminary possession decision is also subject to
further proceedings to reach an ultimate determination-the "final judgment"
that "supersedes" the "prejudgment order for possession." I.C. § 32-30-3-12.
The Indiana statute merely allows the trial court to make a preliminary
decision as to the right to immediate possession of the property. It preserves
Bishop's right to a trial by jury on the ultimate issue as to whether she should
be ejected from the property. We find that there is no constitutional right to a
jury trial at the preliminary possession hearing in an ejectment proceeding.
Therefore, Bishop has failed [*780] to persuade us that the ejectment statute
violated her right to a jury trial pursuant to the Indiana constitution. Wallace,
905 N.E.2d at 378.
Even though the Court has entered this preliminary decision that Tenant is entitled to
remain in possession of the Apartment, the jury is free to conclude that Tenant must give
up possession of the Apartment when it makes the ultimate decision in this case.
5.
On May 31, 2017, Tenant also filed her Response to Complaint and Counterclaim ("the
First Answer and Counterclaim"). On June 1, 2017, by CCS entry the Court struck Tenant's
First Answer and Counterclaim saying:
(Tenant's) May 31, 2017, Response to Complaint and Counterclaim does not
comply with the requirements that all pleadings be clear and concise. It is
stricken from this case. (Tenant) is also granted until June 8, 2017, to file an
June 14, 2017, Revision
Page 3 of 8
hunters run and black preliminary order
6/14/2017 1:21 PM SCANNED
amended pleading that complies with the rules so that she might proceed on
her counterclaim.
See also Zavodnik v. Irene Harper, 17 N.E.3d 259 (Ind. 2014).
At the June 8, 2017, preliminary hearing, the Court provided the parties with portions of
T.R. 8, including the requirement that a pleading must contain, "(A) (1) a short and plain
statement of the claim showing that the pleader is entitled to relief' and "(E)(1) (e)ach
averment of a pleading shall be simple, concise, and direct".
Even though the First Answer and Counterclaim was stricken, the Court considers it to be
a general denial of the allegations made by Landlord.
6.
On June 2, 2017, Landlord filed its Amended Complaint for Possession of Real Property
and Past Due Rent ("the Amended Complaint"). It differed from the Original Complaint by
increasing the alleged violations of the lease to be:
(A)llowing unauthorized occupants to live at apartment. Violation of Lease paragraph 32, Automobiles and Parking Areas; and Resident Responsibilities.
7.
On June 7, 2017, Tenant filed her Response to Amended Complaint.
8.
The following are only preliminary findings. The jury may find otherwise.
A.
"The 'Section 42' Lease Agreement" ("the Lease") is between Tenant and her son,
Kemuel Shem ("Mr. Shem"), and Landlord. It provides that Tenant may occupy the
Apartment along with Mr. Shem and with Tenant's grandchildren, Chrisdeon
Ogunbuyide, Victoria Goree and Christian Goree. Landlord did not prove that
Tenant's adult daughter and Mr. Shem's wife, Jaycee Shem, were also occupying the
Apartment in violation of the Lease. This is a 3 bedroom apartment, which may have
no more than 6 people living in it. The Court finds that Landlord did not prove that
other persons occupied the Apartment than were permitted by Paragraph 4 and 5
of the Lease.
The Court notes that Mr. Shem has been living in Bloomington, where he works and
is attending Indiana University off and on. It is now his home. His wife is from
Bloomington and testified that so far this year she and Mr. Shem only spent about 3
or 4 overnights at the Apartment. Mr. Shem testified that someone from Section 8
told him that he only needed, to stay overnight 10 nights per year at the Apartment
to be considered an occupant of the apartment. The Court finds that this is not
correct. Mr. Shem is not an occupant of the Apartment. If he were, he had a duty to
report his Bloomington income, which he has not. The Court finds that Mr. Shem
and/or Tenant had a duty to properly notify Landlord that Mr. Shem was not living
in the Apartment, but neither did so. The Lease requires Tenant to recertify the
financial information and occupancy at least annually. Landlord's Exhibit 11 shows
this was last done on August 11, 2016, for the recertification due on November 23,
2016. Landlord has the right to require more frequent recertifications, but has not
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done so in this case. Landlord's Exhibit 9 is the Rules and Regulations Handbook
("the Handbook"), which includes a provision requiring Tenant to "notify (Landlord)
of any changes in the number of residents in the household or addition of pets.
Failure to do so will be considered a lease violation." It is unclear how the provisions
in the Handbook affect the annual recertification requirement of the Lease. The
Court notes that Paragraph 6 of the Lease indicates that Mr. Shem will likely have
his Lease with Landlord terminated on or about November 23, 2017, at the latest.
Tenant is a strong willed person. She keeps the Apartment clean and requires her
family members and guests to follow her rules. Tenant is a black person and is very
vocal when she is not treated as she believes she should be. When white people
treat her differently than she believes is appropriate, she often attributes this to
racism. The Court finds no evidence of racism directed toward Tenant by Landlord
nor by Landlord's staff members, but does find evidence of racism by Tenant
directed toward Landlord and Landlord's staff members. However, the Court notes
the Tenant's and Mr. Shem's racist Facebook posts shown in Landlord's Exhibit 10
were made after Landlord filed suit against Tenant, which Tenant believed was
j racially motivated. She was responding, inappropriately, to Landlord's efforts to
i evict her.
i
C.
Tenant placed a sign in one of her windows that was visible to others in Hunters Run
that advertized Tenant's belief that her mother was being treated as a slave. On
February 22, 2016, Landlord issued Landlord's Exhibit 4, which was a written,
"potential lease violation" notice to Tenant directing her to remove the sign, which
1 dearly violated Paragraph 20 of the Lease. It also did not comply with the directive
in the Handbook, "to encourage a positive environment for (residents) and their
neighbors". The sign wasn't removed until shortly after Landlord issued Landlord's
Exhibit 4 on March 7, 2016.
Tenant acknowledged that she was aware that no signs could be posted, but did so
anyway. What she posted is no different than someone displaying a sign advertising
or in support of the Ku Klux Klan. Both are prohibited by Paragraph 20 of the Lease
and bythe Handbook.
Landlord could have taken steps to evict tenant when the sign was posted, but did
not do so until the Amended Complaint was filed, more than a year after the
! violation was committed. The Court finds that the sign violation is too remote in
time to be relevant in an action to evict Tenant now.
D.
Landlord's property manager, Naomi Friedricksen ("the Property Manager"), has a
Facebook account and testified that she uses it to post information multiple times a
day about Hunters Run activities and vacancies. It is widely known that her personal
Facebook account is used for business purposes. Beginning June 27, 2017, Tenant,
using the pseudonym "Ezzrath Baht Shem", "tagged" the Property Manager's
. Facebook account and began posting hateful comments that violated the
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Handbook's requirement to "encourage a positive environment for (residents) and
their neighbors". The comments were posted after Landlord filed suit to evict
Tenant. The comments shown in (4), below, were made by Mr. Shem:
(1).
i just realized!!! When dealing with a ruthless evil woman who is ALSO racist
her dumb ass automatically ASSUMES making one pay from a black person is
going to be a criminal act.
Hell NO! I AM GOING TO SUE THE HOLY SHIT OUT OF YOUR ASS PERSONALLY!
EVERYTHING YOU OWN IS ALREADY MINE!!!
WATCH!!!
YOU CAN'T LIE TO GET RID OF BLACKS UP OUT OF HUNTERS RUN AND YOU
GOT THE RIGHT ONE NOW BABY GIRL.
(2).
I was just cooking pancakes for my babies and that fools mind popped in mine
.. .dam, she'll be calling the police that I am. going.to do a criminal act, LIKE
ALL BLACKS.
But noway... her lies are going to UTTERLY DESTROY all she owns is already
GONE in etheric reality.
MINE, by court order!
(3)
I don't want her money or her assets. I'm going to make an example out of this
evil wickednes she thinks she has white privilege, !et"s find out just how FAR
it's going to get her.
(4)
The following was posted by Mr. Shem:
(a)
In those lost hours dealing with upidy. crackers.
(b)
Tired of all the dam hunkys around here.
(5)
this racist BITCH is evicting me LYING saying I got several people living in my
house. DAM N I can't get several people to even come to meetings.
(6)
This evil bitch that works here at Hunters Run been lying on me since this fall
because she feels I am an upitty nigger for asking her to fix my air conditioning
unit. I was suffering like hell most of the summer for two months. I have it in
writing where I am telling her that I am suffering. She writes back that it's a
SLIGHT inconvenience. But others are in are a priority as they have no air.
My unit didn't shut off so I had to MANUALLY shut off at the box. FREEZING
THEN BOILING all summer for two months. So I ask her if I may go yo district
after two months and she couldn't fix it. After that it was fixed the VERY NEXT
DAY. She been lying on me every since.
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Even so bad that the guy from the air-conditioning vendor said that the office
people are all against me because I am a trouble maker.
i
E.__ | Landlord's Exhibit 2 is a. letter dated November 30, 2015, claiming Tenant had an
__j "aggressive breed" dog in the Apartment. Tenant was given 30 days to vacate the
j Apartment or remove the dog from the Apartment or provide proof that the dog
i was not an aggressive breed.
i When Tenant first rented the Apartment, Landlord was aware that she had a dog
j that weighed more than 50 pounds. Since then Landlord has indicated that pets
■ may not exceed 25 pounds. Since Landlord rented the Apartment to‘Tenant with
knowledge of the size of the dog, Landlord may not use that as a basis to evict
tenant. No evidence was offered to prove the dog was an aggressive breed.
F.
Landlord's Exhibit 6 is a "FINAL WARNING" letter to Tenant, saying:
|
i
l
It has been reported to us by surrounding neighbors that you are .
allowing your dog to relieve itself on the Hunter's Run sidewalk and
landscaping areas and not cleaning up after it.
Landlord submitted this exhibit even though Tenant's Exhibit E is a copy of the same
letter with the following handwritten note by Erika Holliday ("Assistant Property
Manager"):
please disregard, removed from file. Erika Holliday
Landlord's attorney did not offer any explanation as to why Landlord's Exhibit 2 was
offered. Landlord's Exhibit 2 is misleading. The Court finds that Landlord's attorney
j was candid with the Court when he offered Landlord's Exhibit 2, because there is no
1 evidence that he was aware of the handwritten note. It is entirely possible that he
| was not given a copy of Landlord's Exhibit 2 with the note from the Assistant
(
Property Manager.
G.
Landlord's Exhibit 8 is another written "Lease Violation-unauthorized occupants-30
day notice to vacate". As mentioned above, Landlord failed to prove that
unauthorized permanent occupants were staying at the Apartment. The letter also
claimed that the Property Manager saw a burgundy colored Camero driving
recklessly in and out of the parking lot. Tenant was required to vacate the
Apartment by May 20, 2017, at 4:00 p.m. Since Landlord did not enforce the 30 day
i
notice and did not prove unauthorized permanent occupants were at the
Apartment, the reckless driving complaint is too remote in time to be used in this
preliminary eviction case.
H.
Landlord's Exhibit 5 was dated May 26, 2016, and Landlord's Exhibit 7 was dated
| December 5, 2016. Both dealt with damaged blinds. Tenant acknowledged that her
grandchildren or. dog caused damage to the blinds and repaired or replaced them.
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This is a common maintenance issue for this and other apartment complexes and is
not a basis to evict Tenant.
I.
During the summer of 2016 Tenant's air conditioning unit did not work properly and
was not promptly repaired. The Handbook indicates it is Landlord's responsibility to
maintain the Apartment's HVAC unit and encourages tenants to call the 24-hour
maintenance emergency number if the A/C system fails during harsh seasons.
Tenant reported that her A/C until wasn't working properly. Landlord reported that
it is difficult to repair Hunters Run HVAC units, which are 16 years old. Tenant's
system had a bad computer board and it took time to get one. When one arrived, it
too was faulty. It took approximately 2 weeks to make the A/C system work, but the
thermostat did not work and it took about 2 months to fix that. During this time the
A/C system had to be manually turned on and off, so Tenant complained that the
temperature was freezing or too hot.
Landlord was dealing with other malfunctioning units and performed triage. In the
summer heat some apartments had no A/C. They were given priority over Tenant's
apartment, which had a manually controlled A/C system. Tenant became more and
more frustrated with this situation. The Parties' relationship soured considerably.
Tenant went so far as to go to the office to personally serve the Assistant Property
Manager with documents and have her grandson record the video and sound on a
smartphone. The Assistant Property Manager felt threatened and said she would
not permit herself to be recorded and locked herself in her office. Tenant remained
outside the inner office and spoke loudly, firmly, but without any profanity to
explain what she was delivering to Landlord.
J.
Tenant is perceived by Landlord to be a problem tenant. Tenant can be difficult to
work with, but we have the right to have different political beliefs and views. She
may exercise her 1st Amendment rights to speak out against the injustices she
perceives, including speaking out against the undersigned. So long as her conduct is
not criminal or a material violation of the Lease, she is entitled to remain in her
Apartment. The Court is unsure what might constitute a material violation, but
suggests that Tenant would be wise not to post or have posts made like those
shown in Paragraph 8.D. about Landlord and/or Landlord's employees.
K.
An unused truck was parked outside the Apartment. It was in violation of the
Handbook. However, Landlord typically would "tag" the vehicle and have it towed, if
the tenant did not do so. Landlord did neither and may not use this to evict Tenant.
The Court denies Landlord's request for a prejudgment order of possession. At this point, no
proper counterclaim has been filed. If neither Party files a pleading requesting further Court
action, this case may be dismissed on or after August 18, 2017, pursuant to T.R. 41(E).
Signed on June 14, 2017, by:
Warren Haas, Judge of Grant Superior Court 3
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*
CM/ECF USDC-INND Version 6.3.3 Live DB^
Page 1 of 1
?
^Other Orders/Judgments
1:19-CV-00307-WCL-SLC Black
v. Friedrichsen et al
CASREF
U.S. District Court Northern District of Indiana [LIVE]
USDC Northern Indiana
Notice of Electronic Filing
The following transaction was entered on 7/23/2021 at 8:48 AM EST and filed on 7/23/2021
Black v. Friedrichsen et al
Case Name:
1:19-cv-00307-WCL-SLC
Case Number:
Filer:
Document Number: 141 (No document attached)
Docket Text:
ORDER for Magistrate Judge Susan Collins: [140] Defendants' Unopposed Motion for
Continuance of 7/27/2021 Hearing is granted. The hearing set for 7/27/2021 at 11:30 am
re ECFs [108], [114], [117], [120] and [121] is VACATED and RESET for 7/29/2021 at 3:00
pm in US District Court - Fort Wayne. Plaintiff is ORDERED to appear in person.
Defendants may appear by counsel in person or telephonically. (copy mailed to pro se
Plaintiff). Text entry order.(mr)
l:19-cv-00307-WCL-SLC Notice has been electronically mailed to:
Brittney B Rykovich
tcronin@grsm.com
brykovich@grsm.com, dpocica@grsm.com, jswick@grsm.com,
1:19-CV-00307-WCL-SLC Notice has been delivered by U.S. Mail or other means to:
Sandra Black
1408 South Maple Street
Apt. 102
Marion, IN 46953
https://ecf.innd.circ7.dcn/cgi-bin/Dispatch.pl7319890008588967
7/23/2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.