NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2018*
Decided February 1, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17‐1012
PAUL SIMONS, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 14 C 309
JOSEPH FOX,
Defendant‐Appellant. Harry D. Leinenweber,
Judge.
O R D E R
This appeal is principally about the propriety of sanctions against a litigant,
Joseph Fox. In the underlying suit, Paul Simons, the former CEO of Ditto Trade
(a financial‐services firm) and executive vice president of Ditto Holdings (Ditto Trade’s
holding company), was pitted against the Ditto entities and Fox, the founder and
former CEO of Ditto Holdings. Simons sued Fox for firing him for uncovering Fox’s
violations of corporate and securities laws. Fox then countersued Simons for
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐1012 Page 2
defamation. Throughout the acrimonious litigation, Fox asserted that Simons lied in
order to destroy Fox’s companies. Rather than prove that assertion with evidence tested
in the adversarial process, Fox obstructed Simons’s discovery. This led to sanctions and
the dismissal of Fox’s counterclaim. Fox appeals the orders leading up to that dismissal.
He presents no persuasive reason to disturb the district judge’s fair and patient
approach to managing the case, so we affirm.
When discovery began in 2015, the district judge had allowed several claims to
go forward. Simons had claims against Fox for retaliatory discharge, wage withholding,
and defamation. Fox maintained his counterclaim against Simons for defamation. (The
corporate parties had counterclaims, too, but they are irrelevant to this appeal.) From
the outset of discovery, Fox repeatedly refused Simons’s discovery requests. He did not
produce documents that he possessed or controlled, including documents that he had
cited in his defamation counterclaim (such as a letter containing Simons’s allegedly
defamatory statements). Likewise he did not produce relevant emails and text messages
that he had both sent and received. Fox was also an uncooperative deponent. He was
scheduled for two days of depositions—one as the corporate representative and one as
himself. But he stopped the corporate deposition early and refused to return the next
day for his own deposition. To top it off, Fox violated court orders. He disseminated
information from Simons’s deposition in emails to shareholders, even though the
deposition was protected at the time by a confidentiality order.
More difficulties ensued throughout the next year, leading to the dismissal of
Fox’s counterclaim. By November 2016—over a year after discovery had begun—the
attorneys who had represented Fox and his companies had withdrawn, and Simons had
obtained a default judgment against the companies. Now litigating his defamation
counterclaim pro se, Fox still refused to produce requested documents, even though the
district judge directed Fox in at least three separate orders to do so. Growing frustrated
with Fox, the judge sanctioned him with a fine for refusing to be deposed. The fine was
approximately $45,000, reflecting Simons’s reasonable attorneys’ fees. When Fox did not
pay, the judge held him in contempt of court, ordering him to pay $500 every day he
remained in contempt for failing to pay the fine. The judge explained that his patience
had been “worn thin” by Fox’s “discovery obstructions and dilatory tactics” and
violations of court orders. Yet Fox paid nothing, remaining in contempt of court. He
continued to refuse to turn over documents and tried to litigate the merits of the lawsuit
through motions to sanction Simons and his attorney and motions to “reconsider” the
sanctions the judge had imposed on him. The district judge had then had enough. After
Fox asserted that he lacked funds to pay any fines, the judge entered an alternative
No. 17‐1012 Page 3
sanction. He dismissed the defamation counterclaim as the sanction for Fox’s
unremediated obstruction.
At this point the only remaining claims were the original ones that Simons had
brought against Fox. Fox sought summary judgment on those claims. But Simons was
weary with litigating against a “vexatious” pro se litigant who still had not produced
documents that were apparently within his control. So Simons voluntarily moved to
dismiss his remaining claims to end the case. The district judge granted Simons’s
motion, dismissed Simons’s claims without prejudice, and closed the case.
Before addressing Fox’s appeal, we pause to consider our jurisdiction. A
dismissal without prejudice, as occurred here with respect to Simons’s claims against
Fox, is not typically a final order for purposes of appellate jurisdiction. Hernandez
v. Dart, 814 F.3d 836, 840 (7th Cir. 2016). But this case is not typical, and we do have a
final, appealable order. In seeking voluntary dismissal, Simons stated that he was
finished forever with this side of the litigation. And the judge already had entered
judgment with prejudice against the Ditto entities and Fox on their various
counterclaims. With nothing remaining, the judge ruled that the case was “terminated.”
We thus have “multiple indicia that the district court was finished with the case,”
id. at 841. So our appellate jurisdiction is secure.
We turn to the merits. Fox devotes almost half of his opening brief to arguing
that Simons based his claims on lies. But that contention requires evidence that has been
tested in the adversarial process. Fox does not have such evidence because he shunned
the adversarial process when he ignored his discovery obligations. That is why the
district court dismissed his counterclaim. And Fox does not challenge that dismissal,
nor could he. The district judge reasonably dismissed Fox’s counterclaim as a sanction
for Fox’s belligerence. By refusing to sit for depositions, failing to produce documents in
response to court orders, and violating the court’s discovery orders, Fox lost his
privilege to litigate his claim and contentions about “lies.” FED. R. CIV. P. 37(b)(2)(A)(v);
Domanus v. Lewicki, 742 F.3d 290, 301–02 (7th Cir. 2014) (failure to justify refusal to sit for
deposition or produce documents supported dismissal as sanction).
Fox does challenge the sanctions that preceded the dismissal. We may review
those challenges. When we are presented with the dismissal of claims as a sanction, “we
weigh not only the straw that finally broke the camel’s back, but all the straws that the
recalcitrant party piled on over the course of the lawsuit.” Domanus, 742 F.3d at 301
(quoting e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 643 (7th Cir. 2011)). But Fox’s
challenges to those earlier orders are all meritless.
No. 17‐1012 Page 4
Fox first argues that the district judge should not have sanctioned him for
refusing to attend the depositions. We review the imposition of that sanction for abuse
of discretion. See Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009). Fox argues that he
left the depositions for a good reason. He told the district judge that in the middle of his
deposition he was notified that the Ditto entities were closing and he needed to attend
to the closing business. The district judge permissibly rejected this excuse. The judge
observed that the “business” that Fox referred to involved only filling out a short form.
Moreover Fox spent his time after leaving his deposition writing an email tirade to
shareholders about Simons. Without giving any further specifics, Fox repeats on appeal
that he left the depositions for urgent business. But conclusory assertions cannot
overcome the judge’s reasonable exercise of discretion in sanctioning Fox for leaving his
depositions. See id. at 696–97 (refusal to be deposed justified discovery sanctions).
Fox next argues that the judge should have granted his motions to reconsider the
sanctions against him. We review the judge’s denial of reconsideration for abuse of
discretion. See Wickens v. Shell Oil Co., 620 F.3d 747, 758–59 (7th Cir. 2010). The judge
denied Fox’s motions as “untimely.” Fox contends that his motions invoked Federal
Rules of Civil Procedure 60(b)(3) and (6), which allow reconsideration of an order
within a year for “fraud . . . misrepresentation, or misconduct by an opposing party” or
“any other reason that justifies relief.” We need not decide the relevance of Rule 60(b) to
the pre‐judgment orders because the judge’s ruling was in any event reasonable. The
judge was bothered that Fox was inundating the court with rehashed arguments that it
had already rejected about the merits of his and Simons’s claims. A district court does
not abuse its discretion under any rule in refusing to reconsider already rejected
contentions. See Karraker v. Rent‐A‐Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005). On
appeal Fox shifts to a new concern about the sanctions—his previous attorney’s
performance in responding to them—but such arguments do not belong in a suit
against Simons. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001).
Fox next contends that the judge improperly denied “out of hand” his own
motions for sanctions against Simons and Simons’s attorney for their “perjury.” Fox
filed two of these motions while the case was pending, and a third after final judgment.
We review these denials for abuse of discretion. See Nemsky v. ConocoPhillips Co.,
574 F.3d 859, 868 (7th Cir. 2009). We find no fault with the judge’s terse treatment of
Fox’s motions, however. Cf. Katz v. Household Int’l, Inc., 36 F.3d 670, 673 (7th Cir. 1994)
(“even a perfunctory order” may be sufficient if denial of sanctions was appropriate
from face of record). While the case was pending, the judge explained to Fox that his
arguments went to the merits, so they should be brought in a substantive motion, such
No. 17‐1012 Page 5
as one for summary judgment. When Fox persisted in filing a similar motion (the third
one) after final judgment, the judge told Fox he would not consider the motion because
the case was over and it presented nothing new. This approach was eminently
reasonable. See Karraker, 411 F.3d at 837.
Fox responds that he did move for summary judgment, but the judge, Fox argues,
wrongly allowed Simons to dismiss voluntarily his claims against Fox and end the case,
instead of ruling on his motion, which he believes he was going to win. Federal Rule of
Civil Procedure 41(a)(2) allows a plaintiff to dismiss claims voluntarily at any time “on
terms that the court considers proper.” A defendant can prevent such voluntary
dismissal only by showing that “plain legal prejudice” will result. Wojtas v. Capital
Guardian Tr. Co., 477 F.3d 924, 927 (7th Cir. 2007). Fox has not shown this. Although it is
relevant that Fox had moved for summary judgment before the dismissal, see Kunz
v. DeFelice, 538 F.3d 667, 677–78 (7th Cir. 2008), the pendency of his motion is not
enough to show prejudice, see Tyco Laboratories, Inc. v. Koppers Company, Inc., 627 F.2d
54, 56–57 (7th Cir. 1980). At the time of dismissal, Fox was in contempt of court, and he
showed no prospect of respecting his long‐ignored discovery obligations. A judge may
reasonably demand compliance with discovery before considering a motion for
summary judgment. See FED. R. CIV. P. 16(e), (f); 56(d)(2); Grayson v. O’Neill, 308 F.3d
808, 815 (7th Cir. 2002). Fox therefore cannot show prejudice from the judge allowing
Simons to dismiss his claims voluntarily and end the case.
Fox has one last argument that warrants brief discussion. He contends that the
district judge was biased and should have disqualified himself. But the only support
Fox puts forth for this contention is that the judge ruled against him. Judicial rulings,
even those that “are critical or disapproving of, or even hostile to” a party, do not
constitute a valid basis for disqualification except in the “rarest circumstances” in which
“deep‐seated favoritism or antagonism” makes fair judgment impossible. Liteky
v. United States, 510 U.S. 540, 555 (1994); see In re City of Milwaukee, 788 F.3d 717, 720
(7th Cir. 2015). Fox has not shown any inappropriate favoritism or antagonism here.
We have considered Fox’s remaining arguments, and none merits discussion.
Accordingly the judgment is AFFIRMED, and Fox’s motion to stay enforcement of the
money judgment entered against him is DENIED.