United States District Court, N.D. Indiana, Hammond Division
DEGUILIO Judge United States District Court
case, Plaintiff Perry Gordon brings employment claims against
the “Friends of the Gary Public Library Inc. known as
Gary Public Library, ” the “Board of Trustees of
Friends of the Gary Public Library Inc.” (the Board),
each member of that Board individually (the Board Members)
and Diana Morrow, Sylvester Green and Freddie McMillion. [DE
1]. Now before the Court is the Defendants' motion to
dismiss. [DE 19]. The Defendants argue that the Plaintiff has
confused the Friends of the Gary Public Library, a volunteer
organization separate from the library, with the Gary Public
Library (the Library). They say the former entity should be
dismissed since it played no part in the personnel decisions
at issue in this suit. Moreover, they argue that the Library
should also be dismissed because the Plaintiff has not
properly served it. The Plaintiff responded by acknowledging
his mistake and agreeing to dismiss Friends of the Gary
Public Library, the Board and the Board Members. [DE 22].
However, he argues that the Library, Morrow, Green and
McMillion remain proper Defendants.
October 11, 2016, the undersigned referred the
Defendants' motion to dismiss to Magistrate Judge John E.
Martin for a report and recommendation, pursuant to 28 U.S.C.
§ 636(b)(1)(B), Federal Rule of Civil Procedure 72(b)
and Northern District of Indiana Local Rule 72.1(c). [DE 23].
On January 25, 2017, Magistrate Judge Martin issued his
Report and Recommendation. [DE 26]. He concluded that the
Court should dismiss the Friends of the Gary Public Library,
the Board and the Board Members consistent with the
parties' agreement. He further found the Defendants'
motion to dismiss the Library to be moot, since the
Plaintiff's operative complaint does not name the Library
as a Defendant. Finally, he determined that Morrow, Green and
McMillion should not be dismissed, because the Defendants
offered no grounds for dismissing them. [DE 26].
Court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b), however, the Court must only make a
de novo determination of those portions of the
Magistrate Judge's report and recommendation to which
specific written objection has been made. Johnson v. Zema
Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999);
Fed.R.Civ.P. 72(b). 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, the Court can 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).
Defendants objected to Magistrate Judge Martin's report
and recommendation on February 8, 2017. [DE 28]. They contest
his recommendation to not dismiss Morrow, Green and
McMillion. They say it is incorrect, because those Defendants
cannot be subject to individual liability for the
Plaintiff's claims. Rather, only their employer, the Gary
Public Library, can be liable. Additionally, the Defendants
argue that the Plaintiff has not properly served Morrow,
Green or McMillion, because he served them through an agent
of Friends of the Gary Public Library, not the Library.
conducting a de novo review of the Magistrate
Judge's recommendation to not dismiss Morrow, Green and
McMillion, the Court believes that recommendation to be well
founded. The Defendants' motion to dismiss argued only
that Friends of the Gary Public Library was not a proper
defendant and that the Library was not properly served. It
did not mention Morrow, McMillion or Green, or explain why
they should be dismissed. The Magistrate Judge thus
appropriately concluded that there was no justification for
dismissing them. See Yeksigian v. Nappi, 900 F.2d
101, 104 (7th Cir. 1990) (“The defendants have the
burden on a motion to dismiss to establish the legal
insufficiency of the complaint”); Miller v.
Deutsche Bank Nat. Trust, No. 1:10-CV-2, 2010 WL
1686283, at *1 (N.D. Ind. Apr. 20, 2010) (“Once a
defendant has challenged the sufficiency of service of
process with a motion to dismiss under Fed.R.Civ.P.
12(b)(5), the burden is upon the plaintiff to make a prima
facie showing that there was proper service”) (emphasis
added). Further, while the Defendants now assert that Morrow,
Green and McMillion are not proper defendants in their
individual capacities and were not properly served, the
defense did not raise those arguments in its motion to
dismiss. It thus waived them. See Wigod v. Wells Fargo
Bank, N.A., 673 F.3d 547, 571 (7th Cir. 2012) (finding
waiver where an argument was not raised in the opening brief
in support of a motion to dismiss).
the Defendants had not waived those arguments, it is unlikely
that they would have prevailed. While the Defendants
challenge the Plaintiff's ability to sue Morrow, Green
and McMillion individually, courts have generally held
individuals to be suitable defendants at least as to the
Plaintiff's FMLA claims. See, e.g., Rasic v.
City of Northlake, 563 F.Supp.2d 885, 889 (N.D. Ill.
2008). Also, while it appears the Plaintiff did not correctly
serve Morrow, Green and McMillion, that seems to have been a
consequence of his confusing the Friends of the Gary Public
Library with the Library. He has since issued corrected
summonses. [DE 31]. While they are untimely, this mixup
provides good cause for extending the deadline for service.
See Fed. R. Civ. P. 4(m) (providing ninety days from
the filing of a complaint to serve defendants, but stating
that if the plaintiff shows good cause, “the court must
extend the time for service for an appropriate
leaves only the uncontested portions of the Magistrate
Judge's report and recommendation. Here, the Court finds
no clear error. In light of the parties' agreement, it is
clearly appropriate to dismiss the Friends of the Gary
Library, the Board and the Board Members. See Fed.
R. Civ. P. 41(a)(2). Further, the Plaintiff's operative
complaint does not appear to bring claims against the
Library, so the Magistrate Judge appropriately concluded that
the motion to dismiss the claims against it was moot.
the Court ADOPTS Magistrate Judge Martin's Report and
Recommendation [DE 26] in its entirety and incorporates that
Report and Recommendation into this order. The Court GRANTS
the Defendants' motion to dismiss in part and DISMISSES
the Friends of the Gary Public Library Inc. and the Board of
Trustees of Friends of the Gary Public Library Inc. with
prejudice. It DISMISSES the Board Members (Otis Richardson,
Sadie Sheffield, Maryann Canty-Reedus, Tyrell Anderson,
Robert Buggs, Mary Felton and Paula Nalls) without prejudice.
It DENIES the Defendants' request to dismiss Freddie
McMillion, Sylvester Green and Diana Morrow. It DENIES as
moot the Defendants' request to dismiss the Gary Public
Library. It EXTENDS the deadline to serve the Gary Public
Library, Freddie McMillion, Sylvester Green and Diana Morrow
to May 15, 2017.
the Court notes that the Plaintiff has filed two amended
complaints, but did not seek leave to file either of them.
[DE 29, 30]. He was required to obtain leave, as more than
twenty-one days have passed since the Defendants filed a
motion to dismiss. See Fed R. Civ. P. 15. As such,
the Court STRIKES both of those ...