United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE
matter is before the Court on a Verified Motion to Stay
Further Proceedings, in the Alternative, Extension of Time to
Comply with Court's Order [DE 101], filed by John H.
Davis, counsel for Plaintiff Bennie Kennedy, on February 5,
2019, and on a Verified 2nd Objection to the Exercise of
Jurisdiction of the Newly Appointed Magistrate Judge Joshua
P. Kolar in the Above Captioned Case [DE 104], filed by Davis
on February 9, 2019. Defendant Schneider Electric
(“Schneider”) filed a response to the Motion to
Stay on February 21, 2019.
matter is also before the Court on a Verified Motion to
Strike Defendant's Response in Opposition to
Plaintiff's Request for Extension of Time Which Is Being
Submitted to Article III Judge [DE 108], filed by Davis on
February 27, 2019.
case was filed in Lake County, Indiana, Circuit Court in
February 2012 and was removed to this Court on March 20,
2012. Plaintiff brought claims of defamation and malicious
interference with an advantageous relationship against
Defendant Schneider Electric. Schneider filed a motion to
dismiss, which the Court denied.
case was initially assigned to District Court Judge Jon E.
DeGuilio as the presiding judge and Magistrate Judge Paul R.
Cherry as the referral judge. A Notice and Consent form dated
April 30, 2013, and signed by counsel for Plaintiff and
counsel for Schneider is on the docket at entry number 28.
The form indicates that the parties consented to “a
magistrate judge's authority.” (Notice and Consent,
ECF No. 28). The form did not specify that the parties were
consenting to Judge Cherry in particular. On May 8, 2013,
after the Court received consent forms from all parties, the
case was reassigned to Judge Cherry as the sole presiding
case proceeded through discovery. After discovery closed,
Schneider filed a motion for summary judgment, which the
Court granted on September 5, 2014.
April 13, 2016, Plaintiff filed a motion to set aside the
judgment, which was stricken for procedural reasons. The
motion was refiled on May 24, 2016. Plaintiff filed a motion
to disqualify Judge Cherry on June 30, 2016. On July 13,
2016, Schneider filed a motion for sanctions against
Plaintiff and Attorney Davis. On March 1, 2017, the Court
denied the motion to disqualify Judge Cherry, denied the
motion to set aside the judgment, and granted the motion for
sanctions. The Court found:
Had Plaintiff's counsel made a reasonable investigation
of the facts and law necessary to support a motion to set
aside judgment for fraud on the court, he would have found
that Plaintiff's Motion was not warranted by existing
law. Plaintiff's counsel made no non-frivolous argument
for extending, modifying, or reversing existing law or for
establishing new law. Pursuant to Rule 11(c), sanctions are
(Op. & Order, ECF No. 72). The Court awarded in favor of
Schneider and against Davis Schneider's reasonable costs
and attorney fees incurred in defending against the motion to
set aside judgment and in bringing the motion for sanctions,
an amount later determined to be $10, 627.16.
and Davis appealed the Court's orders on the motion to
disqualify Judge Cherry, motion to set aside judgment, and
motion for sanctions and the order awarding $10, 627.16 to
Schneider. On June 19, 2018, the Seventh Circuit Court of
Appeals affirmed the Court's rulings. Davis's
petition for panel rehearing was denied. On October 22, 2018,
the Plaintiff and Davis filed a Petition for a Writ of
Certiorari, seeking review from the Supreme Court of the
United States. See Petition for Writ of Certiorari,
Kennedy v. Schneider Electric, (No. 18-885) (Oct.
22, 2018). That petition was denied on March 4, 2019.
October 26, 2018, Schneider filed a motion to find Davis in
contempt, or, alternatively, to enforce the sanctions award.
Davis did not file a response to that motion. Instead, he
filed a motion to stay proceedings and change the presiding
judge-who was Judge Cherry. Schneider's motion was
granted as to the request to enforce the sanctions award.
Davis was ordered to pay the sanctions award by January 22,
2019. Davis's motion to stay was stricken for failure to
comply with Northern District of Indiana Local Rule 7-1(a).
Davis refiled his motion to stay on December 28, 2018, asking
that the enforcement of the sanctions award be stayed until
after the Supreme Court of the United States resolves his
petition for writ of certiorari.
Cherry retired, and on January 4, 2019, the case was
reassigned to the undersigned magistrate judge. On January 7,
2019, the Court issued an Order that gave the parties an
opportunity to object to the undersigned continuing to
preside over this case. The parties were offered this option
to object even though they had previously consented to the
authority of “a magistrate judge” and not Judge
Cherry specifically. After the objection was filed, the case
was reassigned to Judge Joseph S. Van Bokkelen as the
presiding judge. The undersigned remained on the case as
magistrate judge in a referral role.
the case was reassigned to Judge Van Bokkelen as the
presiding judge, the undersigned denied without prejudice the
refiled motion to stay, finding that, though Davis asked for
a ruling from Chief Judge Theresa L. Springmann, the
undersigned had authority to rule on the non-dispositive
motion. The Court also found that Davis had not met the
standard for a stay pending resolution of his petition ...