Dismissing a case as a sanction is a “draconian” measure that “must be infrequently resorted to by district courts.” Rather, “the interests of justice are best served by resolving cases on their merits . . . .” Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000) (internal citations omitted). Thus, “clear and convincing” is indisputably governing law in the Seventh Circuit:
[C]onsidering the severe and punitive nature of dismissal as a discovery sanction,
a court must have clear and convincing evidence of willfulness, bad faith or fault before dismissing a case. . . . In all circumstances, to justify dismissal as a sanction, there must be clear and convincing evidence.
Maynard v. Nygren, 332 F.3d 462, 468 and fn. 3 (7th Cir. 2003); Prima Tek II, L.L.C. v. Klerk’s Plastic Indus., 525 F.3d 533, 542 (7th Cir. 2008) (requiring “clear and convincing” evidence to hold party in civil contempt for violation of court order). [FN1] Defendants will likely contend that, because several subsequent Seventh Circuit decisions have “questioned” Maynard, the lesser, preponderance-of-the-evidence standard governs. See Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Serv. Americas LLC, 516 F.3d 623, 625-26 (7th Cir. 2008); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007). This argument is unavailing. Maynard has not been overruled and remains the governing standard in this circuit.
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FN1 See also FTC v. Asia Pac. Telecom, Inc., 788 F. Supp. 2d 779, 790 (N.D.Ill. 2011) (“Clear and convincing evidence has been the traditional standard required by the Seventh Circuit for ordering a default judgment as a discovery sanction”); Stewart v. Illinois, 2003 U.S. Dist. LEXIS 14076 (N.D.Ill. Aug. 11, 2003) (holding that dismissal of a case as discovery sanction requires clear and convincing evidence); REP MCR Realty, L.L.C. v. Lynch, 363 F. Supp. 2d 984, 999 (N.D.Ill. 2005) (same).
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Accordingly, this Court must apply the clear-and-convincing standard to Defendants’ motion to dismiss. See JFB Hart Coatings, Inc. v. Am. General, LLC, 764 F.Supp. 2d 974, 981 (N.D.Ill. 2011). It is black-letter law that district courts must apply the law as expressly stated by the Circuit Court in their jurisdiction and not rule based on speculation as to how the Court might rule in the future. See Hastert v. Illinois State Bd. of Election Comm’rs, 1994 U.S. App. LEXIS 13101 (7th Cir. June 1, 1994) (“When a district court overlooks . . . relevant, binding precedent, its decision cannot stand”). Specifically, a district court does not have the authority to decide that governing precedent has been overturned or altered “by implication” in subsequent appellate decisions. See Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988). As the great Judge Learned Hand explained:
[W]e have not been oversuccessful in attempting ‘to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’ and I think it would be the part of wisdom to desist here….
Quoted in Sommerfield v. City of Chicago, 252 F.R.D. 407, 415, fn. 5 (N.D. Ill. 2008) (holding that the cases like Soo Line that question the clear-and-convincing standard have no precedential value).
Accordingly, Defendants must prove by clear and convincing evidence that this action may be dismissed as a discovery sanction for Plaintiff’s purported misdeeds. However, the palpable paucity of proof presented by Defendants in support of their motion requires denial of the motion whichever standard of proof this Court applies.
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Part 3 tomorrow.