Gordon v. Friends of the Gary Public Library Inc. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court ADOPTS Magistrate Judge Martin's Report and Recommendations; GRANTING the Defendants' motion to dismiss in part and DISMISSES WITH PREJUDICE the Friends of the Gary Public Library Inc and the Board of Trustees of Friends of the Gary Public Library Inc; DISMISSES WITHOUT PREJUDICE defendants Otis Richardson, Sadie Sheffield, Maryann Canty-Reedus, Tyrell Anderson, Robert Buggs, Mary Felton, and Paula Nalls; DENYING the Defendants 9; request to dismiss Freddie McMillion, Sylvester Green and Diana Morrow; DENYING AS MOOT the request to dismiss the Gary Public Library; EXTENDING the deadline to serve the Gary Public Library, Freddie McMillion, Sylvester Green and Diana Morrow to 5/15/2017. The Court STRIKES the 29 & 30 Amended Complaints. If the Plaintiff wishes to file an amended complaint he may request leave to do so. Signed by Judge Jon E DeGuilio on 3/20/17. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FRIENDS OF THE GARY PUBLIC
LIBRARY INC., et al.,
CASE NO. 2:16-CV-035 JD
In this case, Plaintiff Perry Gordon brings employment claims against the “Friends of the
Gary Public Library Inc. known as Gary Public Library,” the “Board of Trustees of Friends of
the Gary Public Library Inc.” (the Board), each member of that Board individually (the Board
Members) and Diana Morrow, Sylvester Green and Freddie McMillion. [DE 1]. Now before the
Court is the Defendants’ motion to dismiss. [DE 19]. The Defendants argue that the Plaintiff
has confused the Friends of the Gary Public Library, a volunteer organization separate from the
library, with the Gary Public Library (the Library). They say the former entity should be
dismissed since it played no part in the personnel decisions at issue in this suit. Moreover, they
argue that the Library should also be dismissed because the Plaintiff has not properly served it.
The Plaintiff responded by acknowledging his mistake and agreeing to dismiss Friends of the
Gary Public Library, the Board and the Board Members. [DE 22]. However, he argues that the
Library, Morrow, Green and McMillion remain proper Defendants.
On October 11, 2016, the undersigned referred the Defendants’ motion to dismiss to
Magistrate Judge John E. Martin for a report and recommendation, pursuant to 28 U.S.C. §
636(b)(1)(B), Federal Rule of Civil Procedure 72(b) and Northern District of Indiana Local Rule
72.1(c). [DE 23]. On January 25, 2017, Magistrate Judge Martin issued his Report and
Recommendation. [DE 26]. He concluded that the Court should dismiss the Friends of the Gary
Public Library, the Board and the Board Members consistent with the parties’ agreement. He
further found the Defendants’ motion to dismiss the Library to be moot, since the Plaintiff’s
operative complaint does not name the Library as a Defendant. Finally, he determined that
Morrow, Green and McMillion should not be dismissed, because the Defendants offered no
grounds for dismissing them. [DE 26].
The Court’s review of a Magistrate Judge’s report and recommendation is governed by
28 U.S.C. § 636(b)(1), which provides in part:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
Under Fed. R. Civ. P. 72(b), however, the Court must only make a de novo determination
of those portions of the Magistrate Judge’s report and recommendation to which specific written
objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999); Fed.
R. Civ. P. 72(b). 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, the Court can 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
The Defendants objected to Magistrate Judge Martin’s report and recommendation on
February 8, 2017. [DE 28]. They contest his recommendation to not dismiss Morrow, Green
and McMillion. They say it is incorrect, because those Defendants cannot be subject to
individual liability for the Plaintiff’s claims. Rather, only their employer, the Gary Public
Library, can be liable. Additionally, the Defendants argue that the Plaintiff has not properly
served Morrow, Green or McMillion, because he served them through an agent of Friends of the
Gary Public Library, not the Library.
After conducting a de novo review of the Magistrate Judge’s recommendation to not
dismiss Morrow, Green and McMillion, the Court believes that recommendation to be well
founded. The Defendants’ motion to dismiss argued only that Friends of the Gary Public Library
was not a proper defendant and that the Library was not properly served. It did not mention
Morrow, McMillion or Green, or explain why they should be dismissed. The Magistrate Judge
thus appropriately concluded that there was no justification for dismissing them. See Yeksigian
v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990) (“The defendants have the burden on a motion to
dismiss to establish the legal insufficiency of the complaint”); Miller v. Deutsche Bank Nat.
Trust, No. 1:10-CV-2, 2010 WL 1686283, at *1 (N.D. Ind. Apr. 20, 2010) (“Once a defendant
has challenged the sufficiency of service of process with a motion to dismiss under Fed. R. Civ.
P. 12(b)(5), the burden is upon the plaintiff to make a prima facie showing that there was proper
service”) (emphasis added). Further, while the Defendants now assert that Morrow, Green and
McMillion are not proper defendants in their individual capacities and were not properly served,
the defense did not raise those arguments in its motion to dismiss. It thus waived them. See
Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 571 (7th Cir. 2012) (finding waiver where an
argument was not raised in the opening brief in support of a motion to dismiss).
Even if the Defendants had not waived those arguments, it is unlikely that they would
have prevailed. While the Defendants challenge the Plaintiff’s ability to sue Morrow, Green and
McMillion individually, courts have generally held individuals to be suitable defendants at least
as to the Plaintiff’s FMLA claims. See, e.g., Rasic v. City of Northlake, 563 F. Supp. 2d 885,
889 (N.D. Ill. 2008). Also, while it appears the Plaintiff did not correctly serve Morrow, Green
and McMillion, that seems to have been a consequence of his confusing the Friends of the Gary
Public Library with the Library. He has since issued corrected summonses. [DE 31]. While
they are untimely, this mixup provides good cause for extending the deadline for service. See
Fed. R. Civ. P. 4(m) (providing ninety days from the filing of a complaint to serve defendants,
but stating that if the plaintiff shows good cause, “the court must extend the time for service for
an appropriate period”).
That leaves only the uncontested portions of the Magistrate Judge’s report and
recommendation. Here, the Court finds no clear error. In light of the parties’ agreement, it is
clearly appropriate to dismiss the Friends of the Gary Library, the Board and the Board
Members. See Fed. R. Civ. P. 41(a)(2). Further, the Plaintiff’s operative complaint does not
appear to bring claims against the Library, so the Magistrate Judge appropriately concluded that
the motion to dismiss the claims against it was moot.
Accordingly, the Court ADOPTS Magistrate Judge Martin’s Report and
Recommendation [DE 26] in its entirety and incorporates that Report and Recommendation into
this order. The Court GRANTS the Defendants’ motion to dismiss in part and DISMISSES the
Friends of the Gary Public Library Inc. and the Board of Trustees of Friends of the Gary Public
Library Inc. with prejudice. It DISMISSES the Board Members (Otis Richardson, Sadie
Sheffield, Maryann Canty-Reedus, Tyrell Anderson, Robert Buggs, Mary Felton and Paula
Nalls) without prejudice. It DENIES the Defendants’ request to dismiss Freddie McMillion,
Sylvester Green and Diana Morrow. It DENIES as moot the Defendants’ request to dismiss the
Gary Public Library. It EXTENDS the deadline to serve the Gary Public Library, Freddie
McMillion, Sylvester Green and Diana Morrow to May 15, 2017.
Finally, the Court notes that the Plaintiff has filed two amended complaints, but did not
seek leave to file either of them. [DE 29, 30]. He was required to obtain leave, as more than
twenty-one days have passed since the Defendants filed a motion to dismiss. See Fed R. Civ. P.
15. As such, the Court STRIKES both of those complaints. If the Plaintiff wishes to file an
amended complaint, he may request leave to do so.
ENTERED: March 20, 2017
/s/ JON E. DEGUILIO
United States District Court
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