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Wylie v. Brookdale Senior Living, Inc.

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

November 22, 2019

ANITA WYLIE, Plaintiff/Counter-Defendant
v.
BROOKDALE SENIOR LIVING, INC. and ROBIN RUN RETIREMENT VILLAGE, Defendants. CCRC OPCO ROBIN RUN, LLC Counterclaimant
v.
ANITA WYLIE, Counter-Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on the Magistrate Judge's Report and Recommendation (Dkt. 30) and Defendant Brookdale Senior Living Inc. and Robin Run Retirement Village's (“Brookdale”), and Counterclaimant CCRC OPCO Robin Run, LLC's (“Robin Run”) (collectively the “Defendants”) Submission in Response to Magistrate Judge's Recommendation (Dkt. 32), in which they object to the Magistrate Judge's Report and Recommendation. For the reasons stated below the Magistrate Judge's Report and Recommendation is adopted.

         I. BACKGROUND

         The procedural background in this case is uncontested. After a longstanding dispute regarding financial obligations owed on real property that she acquired following her mother's death, Ms. Wylie initiated this action in Marion Superior Court against Defendants/Counterclaimants Brookdale Senior Living, Inc. and CCRC OpCo-Robin Run, LLC's. In her Complaint, Ms. Wylie requested declaratory judgment and actual, compensatory and punitive damages against the Defendants. (Dkt.. 1-1.) The Defendants removed the case to this Court on November 21, 2018.

         On January 2, 2019, the Defendants filed an Amended Answer to the Complaint which included a Counterclaim against Ms. Wylie. (Dkt. 9.) The Counterclaim alleged that Ms. Wylie breached the Indenture of Restrictions contract that required the owner of 5408 Unity Lane, Indianapolis, Indiana, to pay, among other requirements, a monthly service fee. Id. at 13.

         An Initial Pretrial Conference was held on February 5, 2019 and the parties appeared in person. (Dkt. 10.) During the Initial Pretrial Conference, a scheduling order was discussed and agreed upon. The agreed upon scheduling order was filed on February 5, 2019. (Dkt. 11.)

         On April 18, 2019, the Court denied Ms. Wylie's Motion for Judgment on the Pleading, or in the Alternative, Motion for Summary Judgment, dismissed her claims for emotional distress and punitive damages, and allowed Ms. Wylie to proceed on her claim of Restraint of Plaintiff's Property Rights. (Dkt. 21 at 9.)

         A telephonic status conference before the Magistrate Judge was scheduled for May 22, 2019. Counsel for the Defendant appeared by telephone, but Ms. Wylie failed to call in as directed. The Court issued an Order to Show Cause to Ms. Wylie. (Dkt. 24.) She was ordered to show cause in person at a hearing scheduled for June 28, 2019 as to why she failed to appear for the May 22, 2019 telephonic status conference. The Order explicitly warned Ms. Wylie that failure to obey an order to provide or permit discovery “may result in sanctions, up to and including case dismissal.” (Dkt. 23.) Ms. Wylie failed to appear in person as required, for the show cause hearing.

         On June 28, 2019, at approximately 10:30 a.m., the Court received a telephone call from Ms. Wylie stating she would not be attending the show cause hearing due to the heat. Chamber's staff repeatedly advised Ms. Wylie that there was a court order that required her to appear in court. Despite the warning, for a second time Ms. Wylie violated the Court's orders by failing to appear, even in the face of an explicit warning that failure to appear could result in dismissal. Because of her failures to comply with the Court's orders, the Magistrate Judge recommends that Ms. Wylie's Complaint be dismissed without prejudice. (Dkt. 30.) The Report and Recommendation instructs as follows:

Any objections to the Magistrate Judge's Report and Recommendation must be filed in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Failure to file objections within fourteen days after service will constitute a waiver of subsequent review absent a showing of good cause for such failure.

Id. at 3. The Brookdale Defendants filed a timely Submission in Response to the Magistrate Judge's Recommendation seeking a single modification, that the dismissal be with prejudice as a sanction for Ms. Wylie's numerous failures to comply. (Dkt. 32.) Ms. Wylie did not file any opposition to the Report and Recommendation.

         II. LEGAL STANDARD

         A district court may assign dispositive matters to a magistrate judge, in which case the magistrate judge may submit to the district judge only a report and recommended disposition, including any findings of fact. 28 U.S.C. § 636(b)(1)(B) (2012); Fed.R.Civ.P. 72(b)(1). See also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009). The magistrate judge's recommendation on a dispositive matter is not a final order, and the district judge makes the ultimate decision to “accept, reject, or modify” the findings and recommendations, and the district court need not accept any portion as binding. 28 U.S.C. § 636(b)(1) (2012); Fed.R.Civ.P. 72(b)(3). See also Schur, 577 F.3d at 760-61.

         After a magistrate judge makes a report and recommendation, either party may object within fourteen days of being served with a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). When a party raises specific objections to findings and recommendations made within the magistrate judge's report, the district court is required to review those objections de novo, determining for itself whether the commissioner's decisions as to those issues are supported by substantial evidence or were the result of an error of law. 28 U.S.C. § 636(b)(1) (2012); Fed.R.Civ.P. 72(b)(3). See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The court may, however, defer to those conclusion to which timely objections have not been raised by a party. Schur, 577 F.3d at 760-61. Further, if a party fails ...


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