United States District Court, S.D. Indiana, Indianapolis Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
WALTON PRATT, JUDGE
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
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.
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.
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.)
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.)
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.
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.
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.
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 ...