United States District Court, S.D. Indiana, Indianapolis Division
CURTIS L. WESTBROOK, Plaintiff,
BRIDGES COMMUNITY SERVICES, Defendant.
ORDER DENYING PLAINTIFF'S OBJECTION TO THE
MAGISTRATE JUDGES ORDER (Dkt. 48) AND MOTION FOR
INTERLOCUTORY APPEAL (Dkt. 49)
WALTON PRATT, JUDGE
matter is before the Court on pro se Plaintiff
Curtis L. Westbrook's (“Westbrook”) Objection
to this Court's Order Denying Plaintiff's Motion for
Default Judgment, filed pursuant to Federal Rule of Civil
Procedure 72, (Filing No. 48), and Westbrook's
Motion for Interlocutory Appeal, filed pursuant to 28 U.S.C.
§ 1292(b) (Filing No. 49). Westbrook seeks
reversal of the Magistrate Judge's November 29, 2017
Order, which denied Westbrook's Motion for Default
Judgment as a discovery sanction (Filing No. 44). He
seeks reversal by the District Judge through his Rule 72
Objection or, alternatively by the Seventh Circuit Court of
Appeals, through his Motion for Interlocutory Appeal. For the
reasons set forth below, the Court overrules
the Objection and denies the Motion for
October 26, 2016, Westbrook filed his Complaint against
Defendant Bridges Community Services (“Bridges”),
asserting claims of employment discrimination (Filing No.
1). By its May 15, 2017 Order, the Court set deadlines
for initial disclosures, (Filing No. 18), and
subsequently, extensions of time were granted to September
29, 2017, for the parties to serve their initial disclosures
(Filing No. 29; Filing No. 36). Bridges
failed to timely serve its initial disclosures on Westbrook.
October 12, 2017, without first meeting and conferring with
Bridges' counsel, Westbrook filed a Motion for Default
Judgment because Bridges had failed to serve its initial
disclosures (Filing No. 37). Bridges received notice
of the Motion on October 13, 2017, and filed a response,
opposing the motion for default judgment (Filing No.
39). Bridges explained that it inadvertently overlooked
serving its initial disclosures by the September deadline,
and when counsel realized his oversight, he promptly mailed
the initial disclosures to Westbrook on October 11, 2017, the
day before Westbrook's Motion for Default Judgment was
filed (Filing No. 39 at 1- 2). Bridges' counsel
also pointed out that Westbrook had never contacted him about
discovery issues prior to filing the Motion for Default
Judgment. Id. at 2.
November 29, 2017, the Magistrate Judge denied
Westbrook's Motion for Default Judgment (Filing No.
44). In the Order denying default judgment, the
Magistrate Judge explained, “Default is an extreme
sanction and would be wholly disproportionate to
Bridges's offense of belatedly serving its initial
disclosures. Default is not warranted. See, e.g., Maynard
v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004) (the
guiding principle for sanctions is that they must be
proportionate to the offense).” Id. at 1-2.
Unhappy with the Magistrate Judge's Order denying default
judgment, Westbrook filed a Rule 72 Objection and a Motion
for Interlocutory Appeal on December 6, 2017, requesting
reversal of the Magistrate Judge's Order (Filing No.
48; Filing No. 49).
district court may refer for decision a non-dispositive
pretrial motion to a magistrate judge under Federal Rule of
Civil Procedure 72(a). Rule 72(a) provides:
When a pretrial matter not dispositive of a party's claim
or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and file
objections to the order within 14 days after being served
with a copy. A party may not assign as error a defect in the
order not timely objected to. The district judge in the case
must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
reviewing objections to a magistrate judge's order, the
district court will modify or set aside the order only if it
is clearly erroneous or contrary to law. The clear error
standard is highly differential, permitting reversal only
when the district 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). “An order is contrary to law
when it fails to apply or misapplies relevant statutes, case
law, or rules of procedure.” Coley v. Landrum,
2016 U.S. Dist. LEXIS 13377, at *3 (S.D. Ind. Feb. 4, 2016)
(citation and quotation marks omitted).
legal standard for certifying an order for interlocutory
appeal is set out in statute:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).
There are four statutory criteria for the grant of a section
1292(b) petition to guide the district court: there must be a
question of law, it must be controlling, it
must be contestable, and its resolution must promise
to speed up the litigation. There is also a
nonstatutory requirement: the petition must be filed in the