Stewart v. B & D Grocery Inc

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS entered by Judge Colin Stirling Bruce on 4/26/2021. The Report and Recommendation 8 is adopted in its entirety. Respondent is held in civil contempt. Petitioner is granted leave to file a motion for sancti ons. The statute of limitations is tolled from December 16, 2020 until the date that Respondent complies in full with the subpoena duces tecum. Petitioner is directed to file notice with the court of the date that Respondent complies. The Clerk is directed to substitute Martin J. Walsh, Secretary of Labor, United States Department of Labor, as Petitioner in place of Milton Al Steward, Acting Secretary of Labor, United States Department of Labor. See written order. (JMB)

2:21-mc-02001-CSB-EIL # 11

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E-FILED

Monday, 26 April, 2021 09:31:35 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
MILTON AL STEWART,
Acting Secretary of Labor,
United States Department of Labor,

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Plaintiff,
v.
B&D GROCERY, INC.,
Defendant.

Case No. 21-MC-2001

ORDER

A Report and Recommendation (#8) was entered by Magistrate Judge Eric I.
Long in the above cause on April 5, 2021. Judge Long recommended that Respondent
be held in contempt, due to Respondent’s failure to comply with the subpoena duces
tecum (#4-2) issued by the Department of Labor or to otherwise show cause why it
could not comply with the subpoena as directed in the court’s Order to Show Cause
(#5) entered on March 11, 2021.
Judge Long directed Petitioner to serve a copy of the Report and
Recommendation on Respondent. On April 14, 2021, Petitioner filed an Affidavit of
Service (#9), certifying personal service of the Report and Recommendation on Lester
Detweiler, Respondent’s registered agent, on April 8, 2021.

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The parties were advised that any objection to the Report and Recommendation
must be filed within fourteen days of service. See 28 U.S.C. § 636(b)(1). They were also
informed that a failure to object would constitute a waiver of objections on appeal. See
Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).
Neither Petitioner nor Respondent filed an objection with the court within
fourteen days. However, on April 22, 2021, Petitioner filed a Notice (#10) informing the
court that Petitioner received a copy of the Report and Recommendation, arguably
mailed by Respondent on April 9, 2021, with the following words handwritten in red
across both pages:
NO CONTRACT
NO LIABILITY
NOT UNDERSTANDABLE
CEAST AND DESIST [sic]
(#10-1). Where neither timely nor specific objections are made, the court should review
the Report and Recommendation for clear error. See Johnson v. Zema Systems Corp., 170
F.3d 734, 739 (7th Cir. 1999). Following the court’s review of the Report and
Recommendation and the reasons for it, the court agrees with and accepts Magistrate
Judge Long’s Report and Recommendation (#8) and holds Respondent in contempt.
In Petitioner’s Notice (#10) filed April 22, 2021, Petitioner also seeks leave to file
a motion for sanctions following a finding that Respondent is in contempt of court.
Petitioner is now granted leave to request sanctions.

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Petitioner also requests that the statute of limitations be tolled from the date that
Respondent first failed to comply with the subpoena on December 16, 2020, until the
date that Respondent complies in full. Petitioner’s request is granted. See EEOC v.
O’Grady, 857 F.2d 383, 394 (7th Cir. 1988) (holding that the defendant’s refusal to reply
to subpoenas justified equitable tolling).
Finally, Petitioner also gave the court notice of the automatic substitution of
Martin J. Walsh, Secretary of Labor, as Petitioner, pursuant to Federal Rule of Civil
Procedure 25(d).
IT IS THEREFORE ORDERED:
(1) The Report and Recommendation (#8) is adopted in its entirety. Respondent
is held in civil contempt.
(2) Petitioner is granted leave to file a motion for sanctions.
(3) The statute of limitations is tolled from December 16, 2020, until the date that
Respondent complies in full with the subpoena duces tecum. Petitioner is directed to
file notice with the court of the date that Respondent complies.
(4) The Clerk is directed to substitute Martin J. Walsh, Secretary of Labor, United
States Department of Labor, as Petitioner in place of Milton Al Stewart, Acting Secretary
of Labor, United States Department of Labor.
ENTERED this 26th day of April 2021.
s/Colin Stirling Bruce
COLIN S. BRUCE
U.S. DISTRICT JUDGE

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