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Memory v. Kelley

United States District Court, S.D. Indiana, Indianapolis Division

December 28, 2018



          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Joseph Memory filed this lawsuit in January 2018, alleging that students at Earlham College put his name on a social media “Black List” accusing him and other individuals of committing sexual misconduct. [Filing No. 1; Filing No. 37.] The substance of Mr. Memory's allegations is not currently at issue. Rather, at issue is the repeated failure of Mr. Memory and his counsel to comply with court orders, deadlines, and discovery obligations. These deficiencies culminated in the issuance of an Order to Show Cause, [Filing No. 61], and, after the Magistrate Judge was unsatisfied with the response to the order and show cause hearing, a Report and Recommendation for the dismissal of this case, [Filing No. 69].

         Mr. Memory, by counsel, objects to the Magistrate Judge's Report and Recommendation. [Filing No. 70.] While he offers explanations for several of the shortcomings identified by the Magistrate Judge, he does not dispute or controvert that things have progressed precisely as set forth in the Report and Recommendation. Litigants do not get to decide which orders and deadlines to follow. Even where the opposing parties may not press the issue, the Court has its own, independent obligation to facilitate the “just, speedy, and inexpensive” resolution of every proceeding on its docket. Fed.R.Civ.P. 1. And in a district that is busier than nearly all others in the country, see United States Courts, U.S. District Courts - Combined Civil and Criminal Federal Court Management Statistics 51 (Sept. 30, 2018), files/datatables/ fcmsnadistprofile0930.2018.pdf (Southern District of Indiana ranked third in weighted filings per judgeship), this means that it is incumbent upon counsel to scrupulously adhere to court orders and deadlines, and to impress upon their clients their obligation to do the same. For the reasons more thoroughly set forth below, the Court OVERRULES Mr. Memory's Objection and DISMISSES WITH PREJUDICE Mr. Memory's Amended Complaint.



         Mr. Memory's noncompliance with deadlines and orders began at the onset of this litigation. As memorialized in a Minute Entry dated July 12, 2018, Mr. Memory failed to serve his initial disclosures, file his preliminary witness and exhibit lists, and serve and submit an initial settlement demand by their respective deadlines of May 30, June 6, and June 6, 2018. [Filing No. 47; Filing No. 33 at 5.] Despite the fact that Mr. Memory's filings were over a month late, the Magistrate Judge extended the deadlines to July 20, 2018, and scheduled another telephonic status conference for September 21, 2018. [Filing No. 47.]

         Mr. Memory failed to take advantage of the Magistrate Judge's patience. As of the September 21, 2018 status conference, Mr. Memory still had not served his initial settlement demand-which by that point was over three months overdue based upon the initial deadline and over two months past the extension granted at the July 12, 2018 status conference. [Filing No. 64.] Yet again, the Magistrate Judge provided Mr. Memory with an opportunity to right the ship, ordering Mr. Memory and his counsel to appear in person at a show cause hearing on October 2, 2018. [Filing No. 64.]

         At the October 2 show cause hearing, Mr. Memory's counsel again failed to demonstrate that the Magistrate Judge's patience was justified. Three issues, relevant to the current situation, arose at the show cause hearing: First, Mr. Memory's counsel arrived more than 20 minutes late to the hearing. [Filing No. 66 at 1.] Second, Mr. Memory still had not served his initial settlement demand. [Filing No. 66 at 1.] The Magistrate Judge ordered Mr. Memory to serve the demand by the end of the day. Third, Mr. Memory had not responded to discovery served by Earlham College on May 2, 2018, or to discovery served by Chania Whitaker, responses for which were due on September 10, 2018. [SeeFiling No. 66 at 1-2; Audio Recording from Show Cause Hearing.] Mr. Memory did not dispute his counsel's position that the delay, in large part, was due to his failure to communicate with his counsel. [Audio Recording from Show Cause Hearing.] The Magistrate Judge ordered Mr. Memory to effect service of his long overdue discovery responses by midday October 9, 2018. [Filing No. 66 at 1-2.] Again, the Magistrate Judge declined to immediately issue or recommend sanctions, but instead took the show cause order under advisement, scheduled a telephonic status conference for October 23, 2018, and advised Mr. Memory that “any further failure to comply with any order of the Court may result in sanctions, to include the possible dismissal of this case.” [Filing No. 66.]

         Mr. Memory's counsel failed to appear at the October 23 status conference, despite receiving several electronic notices and despite efforts by the Court to reach out and contact him. [Filing No. 69 at 2 (citing Filing No. 66 at 2; Filing No. 67); Filing No. 68.] Consistent with the warning issued following the show cause hearing, the Magistrate Judge issued a Report and Recommendation, setting forth the history of Mr. Memory's noncompliance with orders and deadlines. [Filing No. 69.] The Magistrate Judge concluded: “To date, Plaintiff has repeatedly failed to comply with the Court's orders and has failed to show cause why this action should not be dismissed. Consequently, the Magistrate Judge recommends the Court DISMISS this action for Plaintiff's failure to comply with the Court's orders.” [Filing No. 69 at 2.] Mr. Memory timely filed his Objection to the Magistrate Judge's Report and Recommendation. [Filing No. 70.] The time for the parties to respond has expired, and the Report and Recommendation and Mr. Memory's Objection are therefore ripe for the Court's review.


         Standard of Review

         Federal Rule of Civil Procedure 72(b) permits a magistrate judge to “hear . . . pretrial matter[s] dispositive of a claim or defense” and to “enter a recommended disposition.” Fed.R.Civ.P. 72(b)(1). Upon timely objection to a report and recommendation on a dispositive issue, see Id. (b)(2), the district judge must give a fresh look to “any part of the magistrate judge's disposition that has been properly objected to, ” and may thereafter “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions, ” id. (b)(3). As the Seventh Circuit has explained, the de novo review required by Rule 72(b) “is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations.” Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (emphasis and citations omitted). Where appropriate, the district court may “take additional evidence” or conduct additional proceedings, “[b]ut if following a review of the record the district court is satisfied with the magistrate judge's findings and recommendations it may in its discretion treat those findings and recommendations as its own.” Id.



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