Brodzik v. Contractors Steel Inc et al

Filing 64

ORDER adopting 63 Report and Recommendations of Magistrate Judge in its entirety and granting in part and denying in part 47 Motion to Dismiss and for sanctions. Signed by Judge Jon E DeGuilio on 9/10/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THOMAS BRODZIK,
Plaintiff,
v.
CONTRACTORS STEEL, INC. and
MARTY HAENDIGES,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 2:13-CV-438 JD

ORDER
Now before the Court is the defendants’ motion to dismiss and for sanctions [DE 47], on
which the magistrate judge has filed a Report and Recommendation [DE 63] pursuant to a
referral. The defendants moved to dismiss in response to various misconduct by the plaintiff in
discovery, including the plaintiff’s last-minute cancellation of two depositions he had noticed,
and his refusal to sit for his own deposition due to the presence of one of the named defendants.
In his Report and Recommendation, Magistrate Judge Cherry agreed that this conduct was
improper and warranted sanctions, but found that it did not involve the degree of willfulness, bad
faith, or fault required to justify dismissing an action with prejudice instead of letting it proceed
to a resolution on its merits. Accordingly, Magistrate Judge Cherry recommended that the Court
deny the defendant’s request to dismiss the action, but grant the motion in other respects.
Specifically, he recommended that the Court impose expenses incurred due to the plaintiff’s
misconduct, and caution the plaintiff that a future failure to comply with the Federal Rules or a
court order may result in dismissal of this action.
After referring a dispositive motion to a magistrate judge, a district court has discretion to
accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate

judge. 28 U.S.C. § 636(b)(1). Consistent with Federal Rule of Civil Procedure 72(b), the district
court must undertake a de novo review “only of those portions of the magistrate judge’s
disposition to which specific written objection is made.” See Johnson v. Zema Sys. Corp., 170
F.3d 734, 739 (7th Cir. 1999) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)). If no
objection or only a partial objection is made, the court reviews those unobjected portions for
clear error. Id. Under the clear error standard, a court will only overturn a magistrate judge’s
ruling if the court is left with “the definite and firm conviction that a mistake has been made.”
Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997).
The time for the parties to file objections to the Report and Recommendation has now
passed and neither party has filed an objection. The Court therefore reviews the Report and
Recommendation under the clear error standard. Having reviewed the parties’ filings and the
Report and Recommendation, the Court concurs with Magistrate Judge Cherry’s analysis, and
therefore ADOPTS the Report and Recommendation [DE 63] in its entirety. Accordingly, the
defendants’ motion [DE 47] is GRANTED in part and DENIED in part.
The Court AWARDS reasonable expenses, including attorney fees and mileage, against
Plaintiff and in favor of Defendants for:
1.

the time and expense incurred as a result of Plaintiff’s refusal to testify at his

deposition;
2.

Plaintiff’s failure to proceed with his own deposition and those of Defendants

Marty Haendiges and the Rule 30(b)(6) representative of Contractors Steel, Inc.; and
3.

the costs incurred in bringing this motion.

The Defendants shall file a verified statement of expenses within 2 weeks of today’s date. If
Plaintiff objects to the reasonableness of those expenses or that they exceed the scope of

2

expenses awarded under this order, he may file an objection within 2 weeks of that filing. The
Court further WARNS Plaintiff that a future failure to comply with the Federal Rules or a court
order may result in dismissal pursuant to Federal Rule of Civil Procedure 41(b) or 37(b).
SO ORDERED.
ENTERED: September 10, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court

3