United States District Court, S.D. Indiana, Indianapolis Division
LARRY G. PHILPOT, Plaintiff,
GRAY TELEVISION, INC., Defendant.
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Defendant Gray Television, Inc.'s ("Gray"), Objection, [Filing No. 24], to the Magistrate Judge's Report and Recommendation, [Filing No. 23], regarding Gray's Motion to Dismiss Plaintiff Larry G. Philpot's Complaint for Lack of Jurisdiction, [Filing No. 7]. For the reasons set forth herein, the Court overrules Gray's Objection and adopts the ruling of the Magistrate Judge. [Filing No. 23.]
On December 2, 2014, Mr. Philpot filed this action against Gray, alleging copyright infringement claims. [Filing No. 1.] He alleges that Gray is headquartered in Georgia and owns many television stations, including one based in Alexandria, Louisiana. [Filing No. 1 at 2.] Mr. Philpot claims that Gray's Louisiana station used a copyrighted photograph of Willie Nelson taken by Mr. Philpot without Mr. Philpot's permission and without attributing the photo to him, in violation of various copyright laws. [Filing No. 1 at 3-4.]
On December 24, 2014, Gray filed a Motion to Dismiss for Improper Venue or, In the Alternative, to Transfer Venue to the Western District of Louisiana. [Filing No. 7.] Mr. Philpot opposed that motion, [Filing No. 14], and Gray replied in support, [Filing No. 16]. On January 20, 2015, this Court referred Gray's motion to the assigned Magistrate Judge, designating her to conduct any necessary hearings and issue a report and recommendation regarding the proper disposition of the motion pursuant to 28 U.S.C. § 636(b)(1)(B). [Filing No. 17.]
The assigned Magistrate Judge issued her Report and Recommendation on February 20, 2015, recommending that the Mr. Philpot's action should not be dismissed but that it should be transferred to the Northern District of Indiana pursuant to 28 U.S.C. § 1406(a) because venue in this District is improper. [Filing No. 23.] Gray objects, [Filing No. 24], and the issue is now ripe for this Court's decision, [Filing No. 25; Filing No. 26].
STANDARD OF REVIEW
Gray assumes that this Court's review of the Magistrate Judge's recommendation will be de novo. [Filing No. 24.] Under de novo review, the Court is free to accept, reject, or modify the recommended disposition. Fed. R. Civ. Pro. 72(b)(3). Mr. Philpot does not address the applicable standard, but the Court notes that other district courts have reviewed magistrate judge recommendations in the transfer context for clear error. See Thomas v. Exxon Mobil Oil Corp., 2007 WL 1035159, at *1 (N.D. Ind. 2007) ("As Exxon is well aware, this Court is not in a position to review Magistrate Judge Cherry's decision de novo. Rule 72(a) of the Federal Rules of Civil Procedure grant magistrate judges great latitude in resolving non-dispositive matters, such as [the Magistrate's recommendation to transfer the case]."); United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2008 WL 2572028, at *2 (N.D. Ind. 2008) (reviewing a recommendation that a request for transfer be denied for clear error).
It is important to remember that this Court is essentially functioning as an appellate court in this context. Thus, even under de novo review, "arguments not made before a magistrate judge are normally waived." United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). As the Seventh Circuit Court of Appeals has observed, "there are good reasons for the rule, " even in the context of de novo review. Id. Failure to fully develop arguments before the magistrate judge may prejudice a party, and "a willingness to consider new arguments at the district court level would undercut the rule that the findings in a magistrate judge's report and recommendation are taken as established unless the party files objections to them." Id.
Because the Court ultimately agrees with the Magistrate Judge's recommendation and Mr. Philpot does not dispute the applicable standard, the Court will apply de novo review. See Fed. R. Civ. Pro. 72(b)(3) (applying de novo review to resolving timely objections to a dispositive motion). That said, the Court will not consider any arguments that were not fully developed before the Magistrate Judge.