YUDKIN et al v. RUBENSTEIN et al

Filing 56

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Presently pending before the Court are Plaintiffs Franklin S. Yudkin ("Mr. Yudkin") and Franklin S. Yudkin & Associates' (collectively, "Plaintiffs") Objecti on, [Filing No. 54], to the Magistrate Judge's Report and Recommendation, [Filing No. 53], on Motions to Dismiss filed by Defendants Clifford T. Rubenstein ("Mr. Rubenstein") and Maurer Rifkin & Hill, PC (collectively, the "Rub enstein Defendants"), [Filing No. 15], and pro se Defendant Robert Imbody, [Filing No. 32]. For the reasons set forth herein, the Court OVERRULES Plaintiffs' Objection, [Filing No. 54], and ADOPTS the Magistrate Judge's Report and Recommendation in full, [Filing No. 53]. Signed by Judge Jane Magnus-Stinson on 1/6/2016. Copy sent to Mr. Imbody via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FRANKLIN S. YUDKIN,
FRANKLIN S. YUDKIN & ASSOCIATES
PSC,

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Plaintiffs,
vs.
CLIFFORD T. RUBENSTEIN,
MAURER RIFKIN & HILL, PC,
ROBERT IMBODY,
Defendants.

No. 1:14-cv-02119-JMS-DML

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently pending before the Court are Plaintiffs Franklin S. Yudkin (“Mr. Yudkin”) and
Franklin S. Yudkin & Associates’ (collectively, “Plaintiffs”) Objection, [Filing No. 54], to the
Magistrate Judge’s Report and Recommendation, [Filing No. 53], on Motions to Dismiss filed by
Defendants Clifford T. Rubenstein (“Mr. Rubenstein”) and Maurer Rifkin & Hill, PC (collectively,
the “Rubenstein Defendants”), [Filing No. 15], and pro se Defendant Robert Imbody, [Filing No.
32]. For the reasons set forth herein, the Court OVERRULES Plaintiffs’ Objection, [Filing No.
54], and ADOPTS the Magistrate Judge’s Report and Recommendation in full, [Filing No. 53].
I.
BRIEF BACKGROUND
Mr. Yudkin filed this action against the Defendants in December 2014. [Filing No. 1.]
The operative complaint alleges claims against the Defendants for defamation, negligent infliction
of emotional distress, and intentional infliction of emotional distress. [Filing No. 5.] The operative
complaint alleges that this Court has diversity jurisdiction and seeks compensatory and punitive
damages totaling not less than $250,000. [Filing No. 5 at 18.] Plaintiffs’ claims in this action
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primarily stem from the contents of a letter that Mr. Rubenstein sent to Mr. Yudkin on behalf of
the Rubenstein Defendants’ then-client Mr. Imbody in October 2014. [Filing No. 5; Filing No. 51 (October 30, 2014 letter).]
In response to Plaintiffs’ Amended Complaint, the Defendants filed Motions to Dismiss.
[Filing No. 15; Filing No. 32.] This Court referred those motions to assigned Magistrate Judge
Debra McVicker Lynch, designating her to conduct any necessary hearings and issue a report and
recommendation regarding the proper disposition of the motion pursuant to 28 U.S.C.
§ 636(b)(1)(B). [Filing No. 29; Filing No. 37.] Magistrate Judge Lynch issued her Report and
Recommendation on November 12, 2015, recommending that the pending Motions to Dismiss be
granted and that all of Plaintiffs’ claims be dismissed. [Filing No. 53.] Plaintiffs now object,
[Filing No. 54], and the Rubenstein Defendants have filed a response in opposition to that
Objection, [Filing No. 55].
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(3) provides that the Court will review
recommendations on dispositive motions 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., 191 F.3d 455 (7th Cir. 1999), it is important to remember that this
Court is essentially functioning as an appellate court in this context. Thus, even under de novo
review, “arguments not made before a magistrate judge are normally waived.” United States v.
Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). As the Seventh Circuit Court of Appeals has
observed, “there are good reasons for the rule,” even in the context of de novo review. Id. Failure
to fully develop arguments before the magistrate judge may prejudice a party, and “a willingness
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to consider new arguments at the district court level would undercut the rule that the findings in a
magistrate judge’s report and recommendation are taken as established unless the party files
objections to them.” Id.
III.
DISCUSSION
For purposes of ruling on Plaintiffs’ Objection, the Court adopts the Magistrate Judge’s
accurate and thorough recitation of the procedural and factual background underlying Plaintiffs’
claims. [Filing No. 53 at 2-8.]
The Court has reviewed the briefing on the Defendants’ Motions to Dismiss, the Magistrate
Judge’s Report and Recommendation, and the briefing on Plaintiffs’ Objection. As the Rubenstein
Defendants point out at various points in response to Plaintiffs’ Objection, Plaintiffs make many
of the same arguments in their Objection that they made in responding to the Defendants’ Motions
to Dismiss. The Court will not readdress those arguments because, to put it simply, the Court
agrees completely with the thorough analysis and conclusions set forth by the Magistrate Judge in
her Report and Recommendation. Moreover, Plaintiffs’ Objection will not be permitted to serve
as a second bite at the apple.
The Court only finds one issue in Plaintiffs’ Objection that it must specifically address.
Approximately two-thirds of the way into their Objection, Plaintiffs make a Kentucky choice-oflaw argument. [Filing No. 54 at 25-29.] Plaintiffs all but concede, however, that they did not
make a cogent Kentucky choice-of-law argument while responding to the Defendants’ Motions to
Dismiss. [Filing No. 54 at 25 (Plaintiffs’ Objection, which “apologizes if [they] did not make it
clearer to the Magistrate that [their] position is as to the letters, they were received in Kentucky
and under Indiana law, Kentucky law applies”).] In fact, Plaintiffs did not cite Kentucky law at
any point in the 23-page response brief to Mr. Imbody’s Motion to Dismiss, [Filing No. 44], and
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only cited Kentucky law as support for the publication argument in the 26-page response brief to
the Rubenstein Defendants’ Motion to Dismiss, [Filing No. 21 at 17-19].
It is well-established that a party may waive a choice-of-law argument by failing to assert
it. McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014). It is also wellestablished that a party’s failure to meaningfully develop an argument results in waiver. See Gen.
Auto Serv. Station v. City of Chicago, 526 F.3d 991, 1006 (7th Cir. 2008) (concluding that a twoparagraph argument was “so brief” that the party “has waived it”). Because Plaintiffs did not
meaningfully develop any argument regarding the application of Kentucky law to their state law
claims in response to the Defendants’ Motions to Dismiss, the Court finds that Plaintiffs have
waived that issue. Thus, it was proper for the Magistrate Judge to apply Indiana substantive law
to address Plaintiffs’ state law claims. McCoy, 760 F.3d at 684 (“[w]hen no party [meaningfully]
raises the choice of law issue, the federal court may simply apply the forum state’s substantive
law”). 1
At bottom, the Court agrees with the Magistrate Judge’s conclusions regarding Plaintiffs’
claims against the Defendants. Mr. Yudkin may well have been offended by certain language in
the communications at issue, perhaps rightfully so. But even making all logical inferences in favor
of Plaintiffs, as the Court is required to do at this stage of the litigation, they cannot maintain
claims for defamation, negligent infliction of emotional distress, or intentional infliction of
emotion distress as a matter of law against any of the Defendants for the reasons set forth in the
Magistrate Judge’s Report and Recommendation. Because the Court agrees with the analysis and

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Additionally, any error in not applying Kentucky law to the publication element of Plaintiffs’
defamation claim—the only context in which Plaintiffs cited Kentucky law in response to the
Defendants’ Motions to Dismiss—is harmless because the Magistrate Judge found in Plaintiffs’
favor on that element by concluding that the Amended Complaint plausibly alleged publication.
[Filing No. 53 at 15-20.]
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conclusions therein, it adopts the Magistrate Judge’s Report and Recommendation in full, [Filing
No. 53], overrules Plaintiffs’ Objection, [Filing No. 54], and grants the Defendants’ Motions to
Dismiss, [Filing No. 15; Filing No. 32].
IV.
CONCLUSION
For the reasons stated herein, the Court OVERRULES Plaintiffs’ Objection, [Filing No.
54], and ADOPTS the Magistrate Judge’s Report and Recommendation in full, [Filing No. 53].
The pending Motions to Dismiss are GRANTED, [Filing No. 15; Filing No. 32], and Plaintiffs’
claims are DISMISSED. Final judgment shall enter accordingly.
_______________________________
Date: January 6, 2016

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

Distribution via US Mail:
ROBERT IMBODY
P.O. Box 501111
Indianapolis, IN 46250
Distribution via CM/ECF:
Franklin S. Yudkin
[e-mail]
Michael E. Brown
KIGHTLINGER & GRAY
[e-mail]
R. Eric Sanders
KIGHTLINGER & GRAY
[e-mail]

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