Hammond loses motion to dismiss after counsel makes misleading representation

An employment discrimination lawsuit against the city of Hammond will proceed after a federal court denied a motion to dismiss, finding counsel for the city had made misleading representations about her knowledge of the plaintiff’s hospitalization for a stroke.

Hammond moved to dismiss the discrimination litigation brought by Andrew Woods, alleging failure to prosecute. Specifically, the city noted Woods failed to appear at an Aug. 13, 2020, pretrial conference, then failed to appear at a subsequent show-cause hearing in September.

But Indiana Northern District Magistrate Judge John E. Martin wrote Monday that “there was some uncertainty as to whether Plaintiff had received the previous orders … .” Eventually, Woods, who is proceeding pro se, responded to the show-cause order in late October.

Before that response, Woods’ last action in the case was to participate in a planning hearing. Two weeks later, he suffered a stroke and was hospitalized.

“In the reply, Counsel for Defendant represents, ‘Plaintiff (nor anyone on his behalf) never contacted the undersigned or the Court at any time after receiving the Court’s order,’” Martin wrote. “However, Plaintiff attaches email correspondence from August 19, 2020, in which, Shana D. Levinson, counsel for Defendant, was informed of his medical emergency.”

Given that Woods participated in the planning meeting, and given his medical emergency, Martin determined that activity had occurred in the past six months and that Woods had good cause for his subsequent failures to appear and respond.

The motion to dismiss was thus denied, with a warning to the city’s counsel.

“Finally, the Court finds Defendant’s representations to the Court to be concerning,” the magistrate judge wrote.

“According to the email exhibits attached to Plaintiff’s response, Defendant’s Counsel, Shana D. Levinson, was notified on August 19, 2020, that Plaintiff suffered from a stroke and was hospitalized. At the September 3, 2020 show cause hearing, Defendant’s counsel represented to the Court that she had been notified that Plaintiff had been experiencing ‘some medical conditions,’ but the Court finds this representation disingenuous in light of the information apparently known to counsel at that time,” Martin wrote.

“Defendant also fails to include any acknowledgement of Plaintiff’s hospitalization in its Motion to Dismiss,” he concluded, “instead stating that, ‘Plaintiff has done nothing to prosecute the [case],’ and first acknowledged Plaintiff’s medical condition in its (November) reply.”

In denying the dismissal motion, the magistrate admonished the city “of the importance of providing truthful representations to the Court.”

The case is Andrew Woods v. City of Hammond, 2:19-cv-247.

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