J & J SPORTS PRODUCTIONS, INC. v. MEMBRENO et al

Filing 38

ENTRY ADOPTING REPORT AND RECOMMENDATION. The Court OVERRULES Plaintiffs' Objection, [dkt. 37], and ADOPTS the Magistrate Judge's Report and Recommendation, [dkt. 36], as discussed herein. The case is DISMISSED WITHOUT PREJUDICE. (See entry.) Signed by Judge Jane Magnus-Stinson on 3/14/2016. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,
vs.
ARIANA ZARATE COBIAN, individually
and dba El Patron Night Club, and
A&C RESTAURANTS, LLC, an unknown
business entity, dba El Patron Night Club,
Defendants.

No. 1:14-cv-02000-JMS-DML

ENTRY ADOPTING REPORT AND RECOMMENDATION
On February 11, 2016 Magistrate Judge Lynch issued a Report and Recommendation to
Dismiss Complaint Without Prejudice. [Dkt. 36.] Her recommendation was based in part on
Plaintiff’s failure to comply with her January 19, 2016 Order requiring Plaintiff to take action in
the prosecution of its claims no later than January 29, 2016. That Order warned: “Should [Plaintiff]
fail to do so, the magistrate judge will recommend the dismissal of its complaint without
prejudice.” [Dkt. 35.] Plaintiff failed to take any action in response to the January 29, 2016 Order.
The Report and Recommendation was also based on the pattern of delays and neglect by Plaintiff,
and this Court’s repeated reminders to Plaintiff about effective service and prosecuting the case.
I.
PROCEDURAL HISTORY
This case was filed on December 4, 2014. After no proof of service was filed within 120
days, the Court issued its first Show Cause Order on April 17, 2015, stating: “Inasmuch as more
than 120 days have passed since Plaintiff initiated this action, Plaintiff must show cause, if any,

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no later than April 27, 2015 why Defendants should not be dismissed from this action without
prejudice under Federal Rule of Civil Procedure 4(m) and this matter closed.” [Dkt. 9 (emphasis
omitted).] That was followed by a Marginal Entry entered April 28, 2015 which stated “Plaintiff
must serve Ms. Membreno within forty-five days and take whatever action it deems necessary with
regard to the remaining defendants. Should it fail to do so, its claims will be dismissed without
prejudice.” [Dkt. 17 (emphasis omitted).] While service was obtained by May 21, 2015, no further
action was taken to prosecute the case until August 28, 2015. [Dkt. 20.]
Plaintiff was granted leave to amend its Complaint on September 4, 2015, and the Court
ordered that it “promptly must arrange for service of appropriate summonses and the amended
complaint on the new defendants.” [Dkt. 21.] When no summons had been requested by October
2, 2015, the Magistrate Judge issued another Order to Show Cause requiring Plaintiff to “SHOW
CAUSE, in writing, by October 16, 2015, why its complaint should not be dismissed without
prejudice because of its failure to comply with the September 4, 2015 order and to serve the new
defendants.” [Dkt. 23 (emphasis omitted).]
Plaintiff responded on October 15, 2015, blaming “email issues.” [Dkt. 24.] Summons
were issued on October 16, 2015, and the Show Cause was discharged. [Dkts. 27; 28.] Another
month went by with no docket activity, and the magistrate judge ordered a report to be filed
regarding service. [Dkt. 29.] The Status Report was vague, saying the summons were with the
Marion County Sheriff’s Department, [dkt. 30], so the magistrate judge issued an order requiring
service to be accomplished by December 11, 2015, [dkt. 31]. The magistrate judge again warned
that non-compliance would result in a recommendation of dismissal because Plaintiff had failed to
comply with the September 4, 2015 Order, and had failed to prosecute its claims. [Dkt. 31.] At

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long last, more than one year after the case was filed, returns of service upon parties whom Plaintiff
deemed the correct defendants were filed on December 11, 2015. [Dkts. 32; 33.]
Another month went by without docket activity, so the magistrate judge ordered Plaintiff
to “take action in the prosecution of its claims no later than January 29, 2016.” [Dkt. 35 (emphasis
omitted).] As noted above, that Order also warned of the potential for a recommendation of
dismissal.
No action was taken by Plaintiff by January 29, 2016, so, as forewarned, the magistrate
judge recommended dismissal without prejudice on February 11, 2016. [Dkt. 36.] On February
29, 2016, eighteen days later, Plaintiff objected to the recommendation. [Dkt. 37.] Plaintiff cited
several excuses, including the previous computer issues and a motion that was filed in an unrelated
case on January 29, 2016. [Dkt. 37.] It also claimed it timely effected service, and that
dismissal was too extreme given the potential impact of the statute of limitations. [Dkt. 37.]
II.
DISCUSSION
Federal Rule of Civil Procedure 72(b)(3) provides that the Court will review magistrate
recommendations that are dispositive de novo. Under de novo review, the Court is free to accept,
reject, or modify the recommended disposition. Fed. R. Civ. Pro. 72(b)(3). Although no deference
is owed to a magistrate judge’s recommendation under the de novo standard, Blake v. Peak Prof.
Health Servs. Inc., 1999 WL 527927, *1-2 (7th Cir. 1999), it is important to remember that this
Court is essentially functioning as an appellate court in this context.
The record before the Court establishes that absent Court prodding by way of orders to
show cause or the establishment of deadlines, Plaintiff did little to prosecute this action in the 13
months it was pending. Plaintiff was warned no fewer than four times that future inactivity might
result in dismissal. On the fourth warning, Plaintiff wholly failed to comply with the magistrate’s
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order to take action to prosecute this matter by January 29, 2016. In fact, it took no action until 19
days after the magistrate judge recommended dismissal, and a full month after Plaintiff had been
ordered to prosecute the case.
Such delay and disobedience of the Court’s Order, given the similar pattern that preceded
it, are sufficient to warrant dismissal. Plaintiff’s claim that dismissal is too severe a sanction is not
persuasive. See Long v. Steepro, 213 F.3d 983, 988 (7th Cir. 2000) (“[A] pattern of delay, noncompliance, or lack of prosecutive intent…[can] justify dismissal without first imposing lesser
sanctions”) (citation omitted). And the fact that statute of limitations may be a defense to any
future claim is of no moment. The Court can count close to 300 days of complete inactivity
by Plaintiff reflected on the docket. [See time periods between docket entries 7 and 24, 19 and
20, and 34 and 37.] Any blame for the running of the statute of limitations lies with Plaintiff.
“[A] party cannot decide for itself when it feels like pressing its action and when it feels
like taking a break because trial judges have a responsibility to litigants to keep their court
calendars as current as humanly possible.” GCIU Employer Retirement Fund v. Chicago Tribune
Co., 8 F.3d 1195, 1198-99 (7th Cir. 1993) (quotation omitted). The undersigned presently has 427
pending cases, and expects the parties to diligently pursue the matters before her. The Court has
no capacity to engage in serial prompting and scolding to encourage a plaintiff to pursue the very
lawsuit it initiated.
III.
CONCLUSION
For the reasons stated herein, the Court OVERRULES Plaintiffs’ Objection, [dkt. 37], and
ADOPTS the Magistrate Judge’s Report and Recommendation, [dkt. 36], as discussed herein. The
case is DISMISSED WITHOUT PREJUDICE.

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Date: _____________
March 14, 2016

Distribution via ECF only:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Charlie William Gordon
GREENE & COOPER PSC
[e-mail]

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