McNamee v. Family Focus Inc

Filing 54

ORDER ACCEPTING AND ADOPTING 53 REPORT AND RECOMMENDATIONS; GRANTING IN PART and DENYING IN PART 50 MOTION to Dismiss Pursuant to Federal Rules of Civil Procedure 37(d) and 41(b) by Defendant Family Focus Inc. The request to dismiss under Rule 41 (b) of the Federal Rules of Civil Procedure is DENIED. The request to dismiss under Rule 37(d) is GRANTED, but the relief is different than requested in the form of an award of reasonable expenses, including attorney fees, against Plaintiff Corey McN amee and in favor of Defendant Family Focus Inc for the time and expense incurred as a result of Plaintiff's lack of response to the discovery served on him and failure to appear for his deposition, and the costs incurred in bringing this Motion . Defendant GRANTED until 12/8/2016 to file a request for these attorney fees and expenses, itemized by task and time expended, where appropriate. Plaintiff ORDERED to file his Response by 12/22/2016. Plaintiff GRANTED a final extension to file respo nses to the outstanding discovery requests and the discovery deadline is EXTENDED to allow Defendant time to reschedule Plaintiff's deposition. The length of the extension and the new discovery deadline will be set by Magistrate Judge Cherry in a separate Order. Plaintiff WARNED that this cause of action will likely be dismissed pursuant to Federal Rule of Civil Procedure 37(d) or 41(b) if he fails to (1) respond to discovery requests; (2) appear for his deposition, if he receives notice of one; and (3) prosecute this cause of action. Signed by Senior Judge James T Moody on 11/8/16. (cc: Corey McNamee).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COREY McNAMEE,
Plaintiff,
v.
FAMILY FOCUS, INC.,
Defendant.

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No. 2:14 CV 260

ORDER
On September 1, 2016, this court referred defendant’s motion to dismiss to
Magistrate Judge Paul R. Cherry. (DE # 52.) On October 6, 2016, Magistrate Judge
Cherry issued an order recommending that this court deny in part and grant in part the
motion to dismiss. (DE # 53.) In his report, Magistrate Judge Cherry informed the
parties that any objections to the report and recommended finding must be made
within 14 days after being served with a copy of the report. (DE # 53 at 6.) That time has
passed, and no objections have been filed. Therefore, the court ACCEPTS and
ADOPTS Magistrate Judge Cherry’s report and recommendation (DE # 53).
Accordingly, the court DENIES in part and GRANTS in part defendant’s motion to
dismiss (DE # 50).
As to the request to dismiss under Rule 41(b) of the Federal Rules of Civil
Procedure, the court DENIES the motion. As to the request to dismiss under Rule 37(d),
the court GRANTS relief different than requested in the form of an award of
reasonable expenses, including attorney fees, against plaintiff and in favor of defendant

for the time and expense incurred as a result of plaintiff’s lack of response to the
discovery served on him and failure to appear for his deposition, and the costs incurred
in bringing this motion. The court GRANTS defendant until December 8, 2016 to file a
request for these attorney fees and expenses, itemized by task and time expended
where appropriate. Plaintiff is ORDERED to file his response, if any, on or before
December 22, 2016.
The court GRANTS plaintiff a final extension to file responses to the outstanding
discovery requests and EXTENDS the discovery deadline to allow defendant time to
reschedule plaintiff’s deposition. The length of the extension and the new discovery
deadline will be set by Magistrate Judge Cherry in a separate order. The court also
WARNS plaintiff that this cause of action will likely be dismissed pursuant to Federal
Rule of Civil Procedure 37(d) or 41(b) if he fails to (1) respond to discovery requests, (2)
appear for his deposition, if he receives notice of one, or (3) prosecute this cause of
action.
SO ORDERED.
Date: November 8, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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