United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
This matter comes before the court on a Report and Recommendation [DE 89] from Magistrate Judge Andrew P. Rodovich. The undersigned hereby grants the plaintiff's objection to the Report and Recommendation, and rejects the Report and Recommendation that this case be dismissed. The undersigned believes that the appropriate sanction under these circumstances is to order plaintiff's counsel to pay the attorney's fees which are directly attributable to his failure to appear at the April 23rd settlement conference.
The procedural history of this case is undisputed. The Plaintiff, Anthony Felice, filed his Complaint [DE 1] by counsel on October 8, 2009. For approximately one year, the parties engaged in discovery. On October 26, 2010, counsel for Felice moved to withdraw their appearances [DE 22]. The court granted the withdrawal and stayed all proceedings for 60 days to allow Felice time to retain new counsel [DE 26]. A status conference was scheduled for December 28, 2010.
On December 3, 2010, Felice filed a pro se motion to continue the status conference [DE 27]. Felice stated that he would be out of the country for an unspecified amount of time and requested a three month extension of all deadlines. Instead, the magistrate judge vacated all deadlines and set the matter for a status conference on March 14, 2011 [DE 29]. Pursuant to the court's order, Felice was to appear in person at the status conference unless he was represented by counsel or made other arrangements with the case manager. Felice did not appear, nor did he give advance notice that we was unable to attend.
The court issued a show cause order on March 15, 2011 [DE 34]. Felice responded that he was absent from the status conference because he was out of the country and was unable to retain counsel until March 23, 2011. On March 24, 2011, Felice's current counsel, Mr. Jay Meisenhelder, entered an appearance [DE 35].
In response to Felice's failure to appear for the status conference, defendant sought dismissal of the lawsuit and $9, 077.59 in fees pursuant to Fed.R.Civ.P. 16(f)(1) and (2). Felice objected only to the request for dismissal, and on June 7, 2011, the magistrate judge issued a report in which he recommended not dismissing the case but rather granting the fee sanction [DE 47]. The undersigned agreed with the magistrate judge and ordered Felice to pay $9, 077.59 in fees to defense counsel.
Thereafter, the undersigned denied defendant's motion for summary judgment [DE 63] and motion for reconsideration [DE 76]. Upon the parties' joint request, the matter was referred to the magistrate judge to conduct a settlement conference [DE 81-82]. On March 7, 2014, the magistrate judge issued a text-only electronic docket entry setting a telephonic conference for March 21 at 9:00 a.m. to schedule the settlement conference. On March 21, defense counsel appeared telephonically, but Mr. Meisenhelder failed to appear. The magistrate judge issued a text-only entry that day which noted plaintiff's need to respond to outstanding discovery by March 31 and which set a settlement conference for April 23. Mr. Meisenhelder admitted that he reviewed the text-only entry and immediately contacted defense counsel relative to the outstanding discovery, but inadvertently overlooked the fact that the settlement conference was set. Per Mr. Meisenhelder, neither he nor his assistant realized that the settlement conference had been set and needed to be placed on Mr. Meisenhelder's calendar. As a result, neither Felice nor Mr. Meisenhelder appeared at the settlement conference.
The magistrate judge issued a show cause order, to which Mr. Meisenhelder responded. Mr. Meisenhelder explained that he failed to note that the hearings had been set in the text-only entries (without separate court orders). These orders were also issued at a time when he was preoccupied by the need to care for his pregnant daughter in late February and March. Specifically, Mr. Meisenhelder's daughter was informed on February 18, 2014 that an ultrasound revealed her child presented with an omphalocele, which then required genetic testing for the presence of severe genetic abnormalities including Downs Syndrome, Trisomey 18 and Trisomey 13. As a result of caring for his daughter, Mr. Meisenhelder became behind in his work and only became aware of the March 21 telephonic conference on March 24, after he returned from taking depositions in Hammond. Mr. Meisenhelder conferred with defense counsel on March 28 and indicated he didn't recall having received any notice that the status conference had been scheduled [DE 88-1]. To make matters worse, despite reviewing the four sentence text-only entry which issued after the status conference, Mr. Meisenhelder only noticed the directive to complete discovery, but he did not notice the scheduling of the settlement conference. Thus, Mr. Meisenhelder maintains he had no actual knowledge that the settlement conference was scheduled and that he was required to attend.
In response, defense counsel argued that the magistrate judge's text-only entries qualified as orders consistent with the CM/ECF User Manual and Local Rule 16-1, and therefore Mr. Meisenhelder was obligated to follow them. Defense counsel urged dismissal of the lawsuit, given Mr. Meisenhelder's failure to appear despite ample notice, and Felice's delayed payment of attorney's fees and previous failure to appear at the March 14, 2011 status conference.
Thereafter, the magistrate judge issued a Report and Recommendation indicating the case ought to be dismissed. The magistrate judge's version of the facts upon which his recommendation relies states that Mr. Meisenhelder responded to the show cause order "stating that he did not attend because the court did not send out a proper scheduling order." [DE 89 at 3]. The magistrate judge also noted that Mr. Meisenhelder's "only justification" for failing to appear at both the telephonic status and settlement conferences "is that he did not receive proper notice because the electronic notification the court sent did not have a written order attached." [DE 89 at 6]. The magistrate judge believed it "highly doubtful that neither of them [Mr. Meisenhelder or his assistant] saw the date for the settlement conference" and ultimately concluded that "[h]aving a preference for a different type of notification is not an excuse for failing to abide by a court order [and] [t]his behavior is in addition to the previous conduct that led to the first show cause order and Felice's significant delay in paying the court ordered attorney's fees." [DE 89 at 7]. The magistrate judge thus recommended dismissal of the lawsuit as an appropriate sanction under Rule 37(b)(2)(A).
Mr. Meisenhelder objects to the magistrate judge's report, arguing: the magistrate judge omitted consideration of counsel's personal circumstances at the time of the missed settlement conference, and plaintiff's conduct was not "contumacious" (including Felice's prior instance of failing to appear in March 2011, Felice's delay in payment of the attorney's fees, and Mr. Meisenhelder's failure to appear at the 2014 status and settlement conferences) thereby warranting the extreme sanction of dismissal. Mr. Meisenhelder further explained that he was not suggesting his failure to appear should be excused on account of the text-only orders, but he was merely explaining the total circumstances which led to his overlooking the orders' contents. Mr. Meisenhelder contends that should the undersigned determine sanctions are appropriate, then the proper sanction would be to require him to pay the defendant's attorney fees incurred as a result of plaintiff's failure to attend the April 23, 2014 settlement conference. Defense counsel did not respond to Mr. Meisenhelder's objection to the Report and Recommendation.
The district court has discretion to accept, reject, modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1). Under 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." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. ...