Marcum v. Graphic Packaging International Inc et al

Filing 43

ORDER ADOPTING 38 REPORT AND RECOMMENDATIONS; OVERRULING 40 OBJECTION to Court Report and Recommendation of Attorney's Fees and Costs by Plaintiff Kenneth W Marcum; GRANTING IN PART and DENYING IN PART 26 MOTION to Dismiss or, in the Alter native, to Enforce by Defendants Cigna Leave Solutions, Graphic Packaging International Inc; GRANTING 39 MOTION/Petition for Fees by Defendants Cigna Leave Solutions, Graphic Packaging International Inc. This case will not be dismissed as this time but sanctions are imposed on Plaintiff as outlined in Order. Signed by Judge Rudy Lozano on 12/6/13. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KENNETH W. MARCUM,
Plaintiff,
vs.
GRAPHIC PACKAGING INTERNATIONAL,
INC., and CIGNA LEAVE SOLUTIONS,
Defendants.

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NO. 1:13-CV-158

ORDER
This matter is before the Court on the Report and Recommendation
of Magistrate Judge Roger B. Cosbey (DE #38) dated October 29, 2013,
and Plaintiff’s Objection to Attorney’s Fees and Costs (DE #40), filed
by Kenneth W. Marcum (“Marcum”) on November 12, 2013. For the reasons
set forth below, the objection is OVERRULED and the report and
recommendation is ADOPTED.

BACKGROUND
Marcum filed a complaint against Defendants in Nobel Superior
Court alleging violations of the Family Medical Leave Act (“FMLA”).
Defendants removed the case to federal court.

On August 16, 2013,

Defendants filed a motion to compel alleging a variety of discovery
abuses. A hearing took place before Magistrate Judge Cosbey on August
28, 2013.

Neither Marcum nor his counsel appeared for the hearing.

Magistrate Judge Cosbey granted the motion to compel in part and
denied the motion in part. (DE# 23-24).

Marcum was ordered to serve

and supplement his Rule 26 disclosures by September 6, 2013, and to
serve

responses

(or

in

some

cases

supplemental

responses)

to

interrogatories and requests for production by Graphic Packaging
International
(improperly

and

named

Life
as

Insurance

Cigna

Leave

Company

of

Solutions).

Norther
The

attorneys fees and costs was taken under advisement.

America

request

for

A hearing was

scheduled for September 20, 2013, in which Marcum and his counsel were
ordered to appear and show cause why they were not present at the
August 28, 2013, hearing.

On September 16, 2013, Defendants filed

their fee petition relating to the previously granted motion to
compel.
Two days later, on September 18, 2013, Defendants filed a motion
titled “Defendants’ Motion to Dismiss or, in the Alternative, to
Enforce.” (DE #26). In short, the motion alleged continued discovery
abuses and sought dismissal as a sanction, or if the Court was
unwilling to dismiss the case, an enforcement of Magistrate Judge
Cosbey’s previous order on the motion to compel.

This Court referred

the matter to Magistrate Judge Cosbey for a Report and Recommendation.
(DE #28).
The same day this Court referred the matter to Magistrate Cosbey,
the

aforementioned

show-cause

hearing

was

held,

and

a

briefing

schedule was established for the motion to dismiss the case or enforce

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the court’s previous order.

No sanctions were imposed on Marcum or

his attorney for their failure to appear at the August 28, 2013,
hearing.

However, Magistrate Judge Cosbey granted the Defendants’

request for fees related to filing the previously granted motion to
compel.

Magistrate Judge Cosbey awarded a reduced fee amount of

$3,085.50 against Marcum and his counsel jointly.
On October 18, 2013, following briefing of the motion to dismiss
or enforce, Magistrate Judge Cosbey held a hearing on the matter.

On

October 29, 2013, Magistrate Judge Cosbey issued his Report and
Recommendation, and after a thorough analysis he recommended:
that the Defendants’ motion to dismiss be denied,
motion to enforce be granted, and the following
sanctions be imposed on Marcum: (1) limiting his
potential damages to lost wages along with
attorney’s fees; (2) limiting his witnesses to
only Ted Bates, Cherri Marcum, and April Kemp;
(3) establishing his lost wages per week at $760;
(4) ordering payment of one-half of the
attorney’s fees previously imposed within 30
days; (5) staying his discovery until he complies
with this Order; and (6) that Marcum and his
counsel pay Defendants’ fees and costs associated
with bringing this motion.
(DE #38 at 10-11).

On November 5, 2013, Marcum filed a timely

objection to the report and recommendation.
response

to

the

objection.

Accordingly,

Defendants have filed a
both

the

report

and

recommendation and Marcum’s objection are ripe for adjudication.

DISCUSSION
When

a

party

makes

objections

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to

a

magistrate

judge’s

recommendations, “[t]he district court is required to conduct a de
novo determination of those portions of the magistrate judge’s report
and recommendations to which objections have been filed.”

Goffman v.

Gross, 59 F.3d 668, 671 (7th Cir. 1995).

“[T]he court may accept,

reject,

part,

or

modify,

in

whole

or

in

the

findings

or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
see also Fed. R. Civ. P. 72(b).
Marcum challenges only one aspect of Magistrate Judge Cosbey’s
recommendation:

the

recommendation

that

Marcum

pay

Defendants’

attorneys fees and costs associated with bringing the motion to
dismiss that is the subject of the report and recommendation.

There

are several problems with the objection.
The objection is very short (essentially four short numbered
paragraphs) and completely lacking in legal authority. The objection
is also inconsistent.

Marcum asserts in one sentence that he has no

objection to Magistrate Judge Cosbey’s recommendation set forth in the
conclusion of the report and recommendation, but in the very next
paragraph he objects to one of those recommendations: that he pay the
costs and fees for the bringing of the motion that was referred to the
magistrate judge.
Putting that inconsistency aside, the remainder of his argument
is, in full, as follows:
3. To pay for Defendants’ motion to dismiss,
which was denied, would create a double sanction
and that relieve [sic] was not warranted. The
court could on its own have dismissed the case.
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It did not.
4. The payment of Attorney’s fees and costs to
dismiss is not justified or warranted in these
circumstances.
(DE #40, pg. 1).
Contrary to the assertion in the objection, at the time the
objection was filed the motion to dismiss had not yet been denied.
The

magistrate’s

recommendation.

report

and

recommendation

is

just

that

-

a

Further, Marcum completely fails to explain why he

believes the magistrate judge’s recommendation would create a double
sanction.

It doesn’t - the previous fee petition was limited to fees

and costs incurred in filing the motion to compel, and Magistrate
Judge Cosbey has recommendied that there be a second award of fees
associated with the filing of the motion to dismiss or enforce.
Federal Rule of Civil Procedure 37(b)(2) contemplates such an award.
Marcum also appears to be arguing that an award of fees is not
warranted because Magistrate Judge Cosby recommended that the motion
to dismiss be denied.

Marcum ignores the fact that one motion was

filed seeking alternative forms of relief: either dismissal or an
order enforcing the court’s previous order granting a motion to
compel.

The request that the case be dismissed was reasonable under

the circumstances. Magistrate Judge Cosbey did not recommend that the
harshest

of

the

requested

relief

be

granted,

recommended that the Defendants be granted relief.

but

nonetheless

The Defendants’

motion to dismiss or in the alterative enforce was well founded.

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Indeed, Marcum has not even challenged most aspects of Magistrate
Judge Cosbey’s recommendation granting a variety of sanctions for
failure to comply with the Court’s previous order.

Under these

circumstances, an award of fees is wholly appropriate.

CONCLUSION
For the reasons set forth above, the Court OVERRULES Marcum’s
objection to the report and recommendation of Magistrate Judge Cosbey
(DE

#40)

and

ADOPTS

the

report

and

recommendation

(DE

#38).

Defendants’ Motion to Dismiss or, in the Alternative, to Enforce is
GRANTED IN PART AND DENIED IN PART.

The case will not be dismissed

at this time, but the following sanctions are imposed on Marcum:
(1)

Marcum’s damages are limited to lost wages along with attorney’s
fees;

(2)

Marcum’s witnesses are limited to only Ted Bates, Cherri Marcum,
and April Kemp;

(3)

Marcum’s lost wages are established at $760 per week;

(4)

Marcum must pay of one-half of the attorney’s fees previously
imposed within 30 days on this order;

(5)

discovery is stayed until Marcum complies with this Order; and

(6)

Marcum and his counsel must pay Defendants’ fees and costs
associated with bringing Defendants’ Motion to Dismiss or, in
the Alterative, to Enforce (DE #26).
Defendants’ request for leave to amend their previously filed fee
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petition (DE #39) to include the fees and costs incurred in responding
to Plaintiff’s objection is GRANTED.

DATED: December 6, 2013

/s/RUDY LOZANO, Judge
United States District Court

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