COLLIER v. UNITED STATES OF AMERICA et al

Filing 117

ORDER ON PLAINTIFF'S MOTION TO RECONSIDER PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT - Plaintiff's Motion to Reconsider Plaintiff's Motion for Leave to File a Second Amended Complaint [Dkt. 106 ] attempts to circumvent the Rule 72(a) time limits to rehash previously rejected arguments. The Court therefore DENIES IN PART Plaintiff's Motion (See Order for Additional Information). Signed by Magistrate Judge Mark J. Dinsmore on 3/22/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ANTHONY LEON COLLIER,

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Plaintiff,
vs.
JOHN F. CARAWAY,
et al.
Defendants.

No. 2:14-cv-00365-JMS-MJD

ORDER ON PLAINTIFF’S MOTION TO RECONSIDER PLAINTIFF’S MOTION FOR
LEAVE TO FILE A SECOND AMENDED COMPLAINT
This matter is before the Court on Plaintiff’s Motion to Reconsider Plaintiff’s Motion for
Leave to File a Second Amended Complaint. [Dkt. 106.] Because Plaintiff cannot circumvent
the Rule 72(a) time limitations for objecting to a Magistrate Judge’s order by belatedly filing a
motion for reconsideration, the Court DENIES IN PART Plaintiff’s Motion.
I. Background
The relevant procedural history of this matter is sufficiently detailed in the Court’s Order
on Plaintiff’s Motion for Leave to File a Second Amended Complaint (“Order”) and need not be
repeated here. [Dkt. 97 at 1-2.] In that Order, dated January 24, 2017, the Court denied
Plaintiff’s motion to amend his complaint to add a Federal Tort Claims Act (FTCA) claim as
futile for failure to comply with the administrative exhaustion requirement prior to bringing suit.
[Dkt. 97 at 2-6.] Plaintiff, by motion dated February 22, 2017, now asks the Court to reconsider
its prior Order. [Dkt. 106.]

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II. Discussion
Plaintiff argues that the Court erred in denying his motion to amend his complaint
because his proposed FTCA claim would relate back to his amended complaint, filed after
exhausting administrative remedies. In response, the Government Defendants argue that the
motion for reconsideration is procedurally improper because Plaintiff seeks only to rehash
previously rejected arguments and that the Court’s Order properly denied leave to amend.
While, “[t]echnically, a ‘Motion to Reconsider’ does not exist under the Federal Rules of
Civil Procedure,” GHSC Assocs. Ltd. P’ship v. Wal-Mart Stores, Inc., 29 Fed. App’x 382, 384
(7th Cir. 2002), the Rules do provide an avenue for challenging a nondispositive order rendered
by a magistrate judge, see Fed. R. Civ. P. 72(a). Federal Rule of Civil Procedure 72(a) provides:
“A party may serve and file objections to the order within 14 days after being served with a
copy. A party may not assign as error a defect in the order not timely objected to.” Fed. R.
Civ. P. 72(a) (emphasis added). While the fourteen–day deadline to object is not jurisdictional,
such that the court may at any time exercise its discretion to review any interlocutory order, see
Kruger v. Apfel, 214 F.3d 784, 786 (7th Cir. 2000), “the parties and the Court are not free to
ignore” this deadline. Granite State Ins. Co. v. Pulliam Enterprises, Inc., No. 3:11-CV-432,
2015 WL 4946156, at *2–4 (N.D. Ind. Aug. 18, 2015). This is because “[t]o hold otherwise . . .
would allow [p]laintiffs to circumvent the time limitation included in Rule 72(a)” and undermine
important interests of fairness, efficiency, and finality. Bro-Tech Corp. v. Thermax, Inc., No.
CIV. 05-CV-2330, 2007 WL 2234521, at *3 (E.D. Pa. Aug. 2, 2007). Only where a party
demonstrates exceptionally good cause should a court exercise its discretion to permit a belated
challenge to a magistrate judge’s rulings beyond the fourteen-day window provided in Rule
72(a). Cf., e.g., Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chicago, 543 F.

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App’x 591, 594-95 (7th Cir. 2013) (“By not filing timely objections, litigants typically waive
their right to challenge on appeal the issues decided in a magistrate judge’s [decision.]”);
Autotech Techs. Ltd. P'ship v. Automationdirect.Com, Inc., 236 F.R.D. 396, 399 (N.D. Ill. 2006)
(Cole, Mag. J.) (“Throughout the range of the law, there are time limits imposed on litigants at
every stage of the case: some are mandatory and admit of no deviations; others are more flexible.
But in each instance, lawyers who do not pay heed to deadlines do so at substantial peril to their
and their clients’ interests.”).
Rule 72(a) is unambiguous and unequivocal: “A party may not assign as error a defect in
the order not timely objected to.” Fed. R. Civ. P. 72(a). Plaintiff did not timely object to the
Court’s January 24, 2017 Order. Instead, Plaintiff waited until February 22, 2017, fifteen days
after the Rule 72(a) objection deadline passed, to file the instant motion to reconsider. Plaintiff
provides no explanation—let alone an explanation that would meet a good cause standard—for
his failure to timely object. Plaintiff may not now circumvent Rule 72(a) by filing a motion
challenging the Court’s Order after the objection deadline has passed. The Court therefore
DENIES Plaintiff’s Motion for Reconsideration as untimely. 1

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Even if Plaintiff had timely filed its motion for reconsideration, Plaintiff has not demonstrated that he is
entitled to the relief sought. Motions for reconsideration are appropriate only where the court makes an
error of apprehension, where the court makes a ruling beyond the issues presented by the parties, or to
address a significant change in the law or facts. Bank of Waunakee v. Rochester Cheese Sales, Inc. 906
F.2d 1185, 1191-92 (7th Cir. 1990). They are a backstop to protect the “misunderstood litigant.” Id. at
1191.

But Plaintiff is not a misunderstood litigant. The Court already considered and rejected Plaintiff’s
argument that relation back to the amended complaint would cure Plaintiff’s failure to exhaust
administrative remedies before filing suit. [Dkt. 97 at 3 (“Simply put, the very filing of a complaint
before exhaustion of the administrative process precludes an FTCA claim in that lawsuit.”).] This is
because the FTCA provides that “[a]n action shall not be instituted . . . unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by
the agency in writing . . . .” 28 U.S.C. § 2675(a) (emphasis added). As the Supreme Court later
explained, “Congress intended to require complete exhaustion of Executive remedies before invocation
of the judicial process.” McNeil v. United States, 508 U.S. 106, 112 (1993) (emphasis added). “A civil

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III. Conclusion
Plaintiff’s Motion to Reconsider Plaintiff’s Motion for Leave to File a Second Amended
Complaint [Dkt. 106] attempts to circumvent the Rule 72(a) time limits to rehash previously
rejected arguments. The Court therefore DENIES IN PART Plaintiff’s Motion. 2
SO ORDERED.

Dated: 22 MAR 2017

Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.

action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3. “Institute,” the operative
term in the FTCA, “is synonymous with . . . ‘commence.’” McNeil, 508 U.S. at 112.
Regardless of the substantive ramifications of the dismissal of the initial complaint and subsequent filing
of the amended complaint [see Dkt. 9 at 5 (noting that the filing of an amended complaint would “entirely
replace and supersede” previously-filed complaint)], procedurally, the original complaint filed before
administrative exhaustion “instituted” this action. The amended complaint did not. Relation back to the
amended complaint cannot assist Plaintiff in this situation. Even if Plaintiff’s Motion were timely, it
could not succeed because it rehashes arguments which are no more persuasive now than they were at the
time the Court first rejected them.
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Plaintiff’s alternative request for certification of an interlocutory appeal remains UNDER
ADVISEMENT.

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