United States District Court, N.D. Indiana, Hammond Division
Order Filed: September 22, 2014
For Thomas Brodzik, Plaintiff: Robin G Remley, LEAD ATTORNEY, Law Offices of Robin Remley LLC, Crown Point, IN.
For Contractors Steel Inc, Marty Haendiges, Defendants: Kearney W Kilens, LEAD ATTORNEY, Jessica L Berman, Litchfield Cavo LLP, Chicago, IL.
OPINION AND ORDER
JON E. DEGUILIO, United States District Judge.
The Plaintiff, Thomas Brodzik, filed a four-count complaint in this matter, asserting claims for FMLA interference (Count 1) and retaliation (Count 2), disability discrimination (Count 3), and age discrimination (Count 4) against his former employer, Contractors Steel, Inc., and his former supervisor, Marty Haendiges. The Defendants moved to dismiss Counts 1 through 3 for failure to state a claim, and this Court referred tat motion to the magistrate judge for a report and recommendation. On September 2, 2014, Magistrate Judge Cherry issued an amended report and recommendation in which he recommended that the Court grant the motion to dismiss as to each of the three counts at issue, but with leave to amend. [DE 28]. Mr. Brodzik subsequently filed a statement in which he indicates that he is in agreement with those recommendations and wishes to file an amended complaint. [DE 29]. The Defendants have not filed any objection.
After referring a dispositive motion to a magistrate judge, a district court has discretion to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1). Consistent with Federal Rule of Civil Procedure 72(b), the district court must undertake a de novo review " only of those portions of the magistrate judge's disposition to which specific written objection is made." See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)). If no objection or only a partial objection is made, the court reviews those unobjected portions for clear error. Id. Under the clear error standard, a court will only overturn a magistrate judge's ruling if the court is left with " the definite and firm conviction that a mistake has been made." Weeks v. Samsung
Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997).
Having reviewed the Report and Recommendation and finding no clear error therein, the Court ADOPTS the Report and Recommendation [DE 28] in its entirety. The Defendants' motion to dismiss [DE 8] is GRANTED. Counts 1 through 3 of Plaintiff's complaint are DISMISSED without prejudice, and Plaintiff is GRANTED 30 days within which to file an amended complaint.
AMENDED FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) & (C)
PAUL R. CHERRY,
This Amended Findings, Report, and Recommendation is issued to correct the August 15, 2014 original Findings, Report, and Recommendation, which was, in part, incorrect and improvidently issued.
This matter is before the Court on Defendants' 12(b)(6) Motion to Dismiss Counts I, II, and III of Plaintiff's Complaint [DE 8], filed on February 21, 2014. District Court Judge Jon E. DeGuilio entered an Order [DE 13] on April 4, 2014, referring this matter to the undersigned Magistrate Judge for a report and recommendation on this motion pursuant to 28 U.S.C. § 636(b)(1)(B). This Amended Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
I. Procedural Background
Plaintiff filed a four-count Complaint on November 27, 2013, alleging Family and Medical Leave Act (FMLA) Interference and Retaliation (Counts I and II), disability discrimination (Count III), and age discrimination (Count IV). Defendants filed this Motion to Dismiss on February 21, 2014, seeking dismissal of Counts I-III. The motion became fully briefed on May 19, 2014.
II. Factual Allegations
Plaintiff began working for Defendant Contractors Steel, Inc. on September 12, 2010. At all relevant times, Contractors Steel employed at least fifty people total, but Plaintiff does not allege that it employed fifty or more people at either the Hammond, Indiana, plant where Plaintiff ...