Perry v. Pogemiller

146 F.R.D. 164, 1992 WL 442751
CourtDistrict Court, N.D. Illinois
DecidedJanuary 22, 1993
DocketNo. 92 C 0824
StatusPublished

This text of 146 F.R.D. 164 (Perry v. Pogemiller) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Pogemiller, 146 F.R.D. 164, 1992 WL 442751 (N.D. Ill. 1993).

Opinion

LINDBERG, District Judge.

Defendants’ motion for leave to file response to plaintiff’s objections to the magistrate’s report and recommendation of November 18, 1992 is denied as moot. The court having reviewed de novo the portions of the Magistrate Judge’s November 18, 1992 report and recommendation to which plaintiff has objected are overruled. The court accepts the report and recommendation in its entirety; and dismisses this action with prejudice.

REPORT AND RECOMMENDATION

EDWARD A. BOBRICK, United States Magistrate Judge.

Before the court is the defendants’ motion to compel certain discovery from plaintiff under Fed.R.Civ.P. 37. We address the motion pursuant to the court’s referral of this case for all dispositive and non-dispositive matters.

Defendants filed their motion to compel in response to plaintiff’s stated refusal to respond to any of defendants’ discovery inquiring into the factual basis for plaintiff’s claim of diversity of citizenship. On August 18, 1992, this Magistrate Judge held a hearing on defendants’ motion to [165]*165compel. At that hearing we found defendants’ motion to compel well-taken, granting same and ordering plaintiff to respond to all but a small portion of the defendants’ discovery.

Plaintiff’s response to our ruling, was to the effect that he would: (1) not answer or respond in any manner to any of defendants' discovery, (2) accept dismissal of his complaint for his stated refusal to answer the court ordered discovery, and (3) address his obligation to respond to defendants' discovery in the setting of an appeal to the U.S. Court of Appeals for the Seventh Circuit. Since this turn of events require our finding that the. complaint should be dismissed, with prejudice, for failure to comply with the court’s order, we are required to set forth our findings in the form of a Report and Recommendation.

I. BACKGROUND

On March 23, 1989, the plaintiff filed an action in the 19th Judicial Circuit Court, Lake County, Illinois, against the same party defendants as those herein. In that cause of action, plaintiff alleged he was a citizen of the State of Illinois. On February 4, 1991, plaintiff voluntarily dismissed the state court action. On February 3, 1992, plaintiff filed the instant case in the federal district court against the same named defendants, alleging the identical cause of action as that in the state case. Plaintiff, in his initial federal complaint, alleged he was a citizen of the Commonwealth of Pennsylvania, and that on March 23, 1989, when he filed suit in the Illinois state court, was a citizen of Illinois. Plaintiff, at the time of filing of the instant case, indicated to the Clerk of the Court that his mailing address was “POB 1951, Arlington Heights, Illinois 60006.”

It is under these circumstances that the defendants, on July 6, 1992, filed a motion to dismiss based upon a lack of subject matter jurisdiction, simultaneously serving on plaintiff discovery specifically inquiring into matters that need be considered in determining a person’s citizenship for the purposes of diversity jurisdiction. Defendants’ discovery was clearly aimed at challenging plaintiff’s claim of diversity jurisdiction, and under the circumstances as above described, is found to be more than a reasonable undertaking. It is this discovery that is the focus of this Report and Recommendation.

The parties, apparently as part of a Local General Rule 12(K) conference, did discuss the need for plaintiff to respond to defendants’ discovery. Plaintiff, at that time, indicated he would not respond to any of the discovery served upon him. Defendants, pursuant to Local Civil Rule l,1 also requested plaintiff to provide a certified statement setting forth his residence. Plaintiff declined to providé this information as well. After plaintiff indicated he would not comply with defendants’ discovery, or the request under Local Civil Rule I, defendants then filed their motion to compel, which brings this matter to issue.

II. PLAINTIFF’S COMPLAINT MUST BE DISMISSED FOR FAILURE TO RESPOND TO DEFENDANTS’ DISCOVERY AS ORDERED BY THE COURT

On August 18, 1992, a hearing was held on defendants’ motion to compel. At that hearing we reviewed each and every interrogatory and production request. Some of the discovery requested information going back five years in time from the date of the interrogatory, others requested information for a lesser period of time. The type [166]*166of information sought from plaintiff in defendants’ discovery involved the following: the identification of plaintiff’s current address; information concerning his residences over a five-year period; his mailing addresses over a five-year period; information concerning his voter registration and driver license registration; location of real estate ownership; location of leases on plaintiff’s residence(s); identification of the state in which he lived at the time he filed his federal or local income taxes; information on bank accounts; and addresses he had used as credit references. In large part, we allowed defendants’ inquiry into these matters since it was obvious to us the discovery comprised a legitimate inquiry into facts surrounding plaintiff’s domicile. Accordingly, we granted defendants’ motion to compel and ordered plaintiff to fully answer defendants’ discovery. In response to our granting defendants’ motion to compel and ordering plaintiff to respond to defendants’ discovery, plaintiff, in open court, stated he would not comply with the discovery requests, and that he was willing to accept dismissal of his suit as a result of his stated refusal.

The plaintiff’s refusal to comply with the discovery request was based on two objections. The first, and in reality plaintiff’s real challenge to defendants’ discovery, rested upon his assertion that since diversity jurisdiction is determined at the time of commencement of the action, defendants’ discovery seeking information occurring prior to the day plaintiff actually filed the instant law suit is not relevant to the issue of diversity jurisdiction. The second objection was in the form of a general objection based upon lack of relevancy. Plaintiff steadfastly maintains that the only information defendants are entitled to is that information distinctly limited in time to the actual day the instant action was filed. Plaintiff, in support of his position, relies upon two court decisions that hold that diversity of citizenship for federal jurisdiction is assessed at the time the action is filed: Freeport-McMoRAN, Inc. v. KN Energy, Inc., 498 U.S. 426, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) and Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980). While we do not disagree with the holding of the cited cases, we find plaintiff’s application of same untenable and, indeed, hostile to what would be this court’s legitimate inquiry into facts surrounding his claim of diversity jurisdiction, and of course, any challenge thereto. As such, plaintiff’s refusal to comply requires that his complaint be dismissed with prejudice.2 National Artists Management Co., Inc. v. Weaving, 769 F.Supp. 1224, 1228 (S.D.N.Y.1991).

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146 F.R.D. 164, 1992 WL 442751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-pogemiller-ilnd-1993.