United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
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].
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), http://www.uscourts.gov/sites/default/
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
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.]
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.
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.
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.
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.