United States v. Dimucci

110 F.R.D. 263, 1986 U.S. Dist. LEXIS 27218
CourtDistrict Court, N.D. Illinois
DecidedApril 3, 1986
DocketNo. 84 C 8632
StatusPublished
Cited by1 cases

This text of 110 F.R.D. 263 (United States v. Dimucci) 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
United States v. Dimucci, 110 F.R.D. 263, 1986 U.S. Dist. LEXIS 27218 (N.D. Ill. 1986).

Opinion

MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

On October 4, 1984, plaintiff filed this complaint alleging defendants were engaging in a pattern and practice of discrimination on the basis of race in violation of the Fair Housing Act, Title VIII .of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq. As relief plaintiff sought an order enjoining defendants from violating the Fair Housing Act in the rental of housing units. On October 16, 1985, this court struck defendants’ pleadings and held each defendant in default for failure to comply with discovery requests and this court’s orders. On October 25 plaintiff moved for entry of final default judgment and on November 1 defendants filed a motion under Fed.R.Civ.P. 55(c) to set aside the default with a supporting brief. On November 26 defendants, having hired new counsel, moved to stay the ruling on the default motions so the parties could attempt to settle this case. In this motion defendants claimed their former counsel had not informed them “of the seriousness of the Government’s allegations regarding failure to respond to discovery requests.”1 That motion was granted but the case was not settled. This court ordered defendants’ former counsel to file a response to defendants’ claim that he did not keep them informed and the parties then filed another round of briefs.

I. WHETHER ENTRY OF DEFAULT WAS JUSTIFIED

Though all made under Rule 55(c), some of defendants’ arguments are really directed at the propriety of the entry of default; that is, defendants argue the October 16 entry of default was factually and legally mistaken.2 Those arguments will be treated here as a motion for reconsideration. Before addressing those arguments a review of the procedural history of this case is necessary.

A. Facts3

On January 17, 1985, plaintiff served defendant with its first interrogatories and first request for production of documents, seeking the name and address of every apartment complex defendants owned or managed; various information about the apartments, their managers and their occupants and potential occupants; and various information about how the apartments are managed (with the emphasis on how potential occupants are treated). Defendants neither responded nor objected within the required time. On March 19 (28 days late) defendants gave plaintiffs a set of leases for one of the four apartment complexes they owned but neither answered nor objected to any of the interrogatories or the remaining document requests. That same day defendants’ counsel spoke with plaintiff’s counsel on the telephone and acknowledged his response was incomplete but asked for certain documents from plaintiff [265]*265before he finished responding. Plaintiffs counsel then sent defendants’ counsel a letter agreeing to send the requested documents and requesting that defendants respond by March 25 or meet with plaintiff’s counsel for a discovery conference. Defendants’ counsel did not respond.

On March 26 this court held a status hearing at which defendants’ counsel failed to appear. An order was entered directing defendants to respond to outstanding discovery within seven days. Defendants did not comply with that order.

Plaintiff then filed a motion for civil contempt which was addressed at the April 10 status hearing. Defendants were given an extension until April 22 to respond to outstanding discovery but were warned that if they failed to comply with the April 22 deadline this court would enter - default judgment. On April 22 and 23 defendants answered some of the interrogatories and gave plaintiff some additional documents. In open court at the status hearing on May 2, defendants’ counsel represented to the court and plaintiff’s counsel that he would supplement his response to fully comply with the discovery requests by May 15, a date he later changed to May 20. On May 24, defendants’ counsel delivered a supplemental response to the interrogatories.

Believing the response to be still incomplete, plaintiff filed a motion to compel and on June 5 this court ordered defendants to respond to all outstanding discovery by June 19 and set a status for the day after, June 20. Again, this court warned defendants that failure to respond to the discovery could result in default being entered. Defendants did not respond, and at the June 20 status this court entered yet another order directing defendants to answer certain interrogatories within seven days. Defendants then submitted a document titled “Final Response to United States’ First Interrogatories.” That response still did not disclose the names and addresses of those persons responsible for renting defendants’ apartments or the applications for apartments.

Plaintiff then tried to get the desired information by serving a second set of interrogatories and document requests, this time seeking the identity of every person with knowledge of facts relating to the case, the identity of persons defendants might call as witnesses, and copies of documents defendants might use at trial. Defendants claim in their November 1 brief that their counsel orally informed plaintiff’s counsel he did not expect to use any documents at trial but that if he did they would be those documents already produced, and that he did not then know what witnessés he might call. Plaintiff’s counsel have filed affidavits denying they had any such communication from defendants’ counsel. While normally reluctant to resolve such lawyer-lawyer conflicts, this court credits the affidavits of plaintiff’s counsel over the unsworn claims in defendants’ brief. Moreover, an oral response is not sufficient under Rule 33(a), and defendants provide no excuse for not responding to that part of the interrogatory seeking the identity of all persons with knowledge of the facts relating to this case.

Plaintiffs also sought the desired information through depositions of the current apartment managers and the president of the management company. Though unsuccessful in obtaining the information, plaintiff did learn that despite the fact that the management company was a corporation separate (on paper) from defendants, defendant Robert Dimucci prepared the payroll for the management company and was custodian of the payroll records.

Plaintiffs then served their third request for documents, seeking payroll records and anything else that would 'identify apartment managers. The request also again sought applications for apartments. Defendants responded by claiming the payroll and other records were in the possession of either Willow Management Company or SDM Realty Company. Nonetheless, some checks drawn on Willow Management Company were provided but, as the examples attached to plaintiff’s response brief show, those checks disclosed no pertinent information (in part because the checks were [266]*266incompletely copied). Though the response stated records of SDM Company were included, none were. Defendants have since admitted (and the record shows) that they own SDM, which means they had legal control over any documents SDM had and were obligated to turn them over. In re Folding Carton Antitrust Litigation, 76 F.R.D. 420, 423 (N.D.Ill.1977).

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Cite This Page — Counsel Stack

Bluebook (online)
110 F.R.D. 263, 1986 U.S. Dist. LEXIS 27218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dimucci-ilnd-1986.