CASTELINO v. ROSE-HULMAN INSTITUTE OF TECHNOLOGY

Filing 104

ENTRY ON MOTION TO RECONSIDER - This cause is before the Court on the Plaintiff's motion to reconsider (Dkt. No. 91 ). The motion is fully briefed and the Court, being duly advised, DENIES the motion. By making this baseless accusation of misconduct against Magistrate Judge Dinsmore and defense counsel, Mr. Thrasher has come perilously close to crossing the line from vigorous (if misguided) advocacy to sanctionable conduct. Mr. Thrasher is directed to review the Indiana Rules of Professional Conduct and the Seventh Circuit Standards of Professional Conduct, both of which govern the conduct of attorneys appearing before this Court, see Local Rule 83-5, and insure that he fully complies with those rules and standards in all future filings, communications, and actions during the course of this case (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge William T. Lawrence on 9/8/2017. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JUSTIN CASTELINO,

Plaintiff,
vs.
ROSE-HULMAN INSTITUTE OF
TECHNOLOGY,
Defendant.

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ENTRY ON MOTION TO RECONSIDER
This cause is before the Court on the Plaintiff’s motion to reconsider (Dkt. No. 91). The
motion is fully briefed and the Court, being duly advised, DENIES the motion for the reasons set
forth below.
As an initial matter, the Plaintiff either misunderstands or purposefully mischaracterizes
the relief he sought in his previous motion. In the instant motion, the Plaintiff “moves this court,
under and pursuant to F.R.Civ.P. 59(e) for reconsideration of the Entry of August 16, 2017,
Docket No. 88, on Plaintiff’s Motions to disqualify the magistrate and terminate Defendant’s
deposition of Plaintiff to prevent manifest injustice . . . .” Dkt. No 91 at 1 (emphasis added).
The Court has not ruled on any motion to terminate the Plaintiff’s deposition and therefore
cannot reconsider any such ruling. Whether the Plaintiff’s deposition should be terminated is the
subject of a still pending motion which, like the other non-dispositive motions in this case, has
been referred to Magistrate Judge Dinsmore for ruling.1 In addition to the motion to disqualify,

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Given this fact, it is not clear why the Plaintiff goes on at great length about the
circumstances of his deposition in his brief in support of the instant motion. Again, the issue of
whether the Plaintiff’s deposition should be reopened or terminated is the subject of a separate

the Entry the Plaintiff now asks the Court to reconsider (which is found at Docket No. 88)
resolved the Plaintiff’s objection to Magistrate Judge Dinsmore’s Order Rescheduling
Preliminary Injunction Hearing (which is found at Dkt. No. 70).2 Those are the only rulings that
the Court has made, and therefore the only rulings the Court could reconsider.
The Plaintiff inexplicably begins the argument portion of his brief with the following:
To address a clear error of law, we would remind the Court that the
“Eggshell Skull” rule applies to more that [sic] actual head injuries. It applies
whenever a defendant is surprised by the extent of the damage its actions caused.
“If a tortfeasor inflicts a graver loss on his victim than one would have expected
because the victim had some pre-existing vulnerability, that is the tortfeasor’s bad
luck; you take your victim as you find him. That is the famous “eggshell skull”
rule of tort law, illustrated by our decision in Stoleson v. United States, 708 F.2d
1217 (7th Cir.1983)” Schmude V. [sic] Tricam Industries, Inc., 556 F.3d 624 (7th
Cir. 2009).
The cited Stoleson case involved a suit to recover for hypochondria
induced by the Government’s failure to protect the plaintiff from over-exposure to
glycerine; the Court of Appeals cited Prosser, Handbook of the Law of Torts 261
(4th ed. 1971)) as authority for applying the Rule against the Government. As in
this case, Stoleson did not involve a head injury or any physical injury directly
caused by a rude, angry or violent touching. It involved a preexisting
susceptibility.
Justin had a pre-existing susceptibility. It was documented. See Exh. 1, 2
attached to Plaintiff’s Brief in Support of Preliminary Injunctive Relief, filed on
July 10, 2017, as Docket No. 56. The Eggshell Skull Rule applies to this case,
especially since the Defendant’s actions or inactions in denying Justin his
accommodations caused him greater injury than a normal student would expect.
That is precisely why they had to accommodate him.
Dkt. No. 92 at 2-3. There is nothing in the Court’s previous ruling that remotely suggests that
the Court believed the eggshell skull rule to be limited to “actual head injuries.” Rather, what

motion and is not before the Court at this time. The Plaintiff cannot object to a ruling the
magistrate judge has not made. The same is true of the other pending discovery motions.
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The Plaintiff expressly “object[ed] to the Magistrate Judge’s Order of July 27, 2017 and
specifically, to the part of that Order that set Plaintiff’s Preliminary Injunction Hearing back
from August 23, 2017 to November 2, 2017 . . . .” Dkt. No. 86.
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the Court said was the following: “That doctrine relates to the proper determination of the
proximate cause of injuries to a person with a preexisting condition and the proper calculation of
damages in such cases; it has no application to the conduct of a deposition by counsel.” Dkt. No.
88 at 7. That remains the case, and the Plaintiff has made no cogent argument to the contrary.
The Plaintiff correctly notes that the Court referred to the basis for his original arguments
as “a bit murky” and states that this “suggest[s] strongly the possibility that the Court did not
understand us properly.” Dkt. No. 92 at 1. However, the Plaintiff then proceeds to simply
reiterate the arguments he made in his original brief. Inasmuch as these arguments were fully
addressed in the Court’s previous ruling, it is abundantly clear that the Court did not
misunderstand the Plaintiff; rather, the Court simply found the arguments to be without merit.
The Court still does.
The Plaintiff argues that “[a]s evidence of impermissible partiality, we offer[ed] the
several occasions when Magistrate Dinsmore has favored the Defendant by disregarding the
Federal Rules of Procedure.” Dkt. No. 92 at 3. The Court examined each of these alleged
violations of the rules in its original Entry and explained at length why each was not, in fact, a
violation, concluding that “Magistrate Judge Dinsmore has not disregarded either applicable
prior case law or the applicable rules.” The Court stands by its prior ruling. The Plaintiff
apparently continues to believe that the fact that Magistrate Judge Dinsmore has addressed
discovery matters and deadlines in this case by means of informal status conferences rather than
formal motion practice is somehow improper. The Court reiterates that, for the reasons
explained at length in its previous Entry, that belief is simply incorrect. Magistrate Judge
Dinsmore has addressed the issues that have arisen in this case in the same manner as all of the
magistrate judges in this district address issues in every case. As explained in the Court’s prior

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ruling, and wholly ignored by the Plaintiff, using informal conferences to discuss and attempt to
reach consensus regarding discovery issues and deadlines is contemplated both by the Federal
Rules of Civil Procedure and the Court’s uniform case management plan. Indeed, it is a
necessary component of the administration of justice, especially in this district, which has one of
the highest weighted caseloads per judicial officer in the nation. The Plaintiff’s continued
insistence that the fact that Magistrate Judge Dinsmore did not require a formal motion for every
extended deadline somehow indicates a lack of impartiality is frivolous and suggests a real or
feigned misunderstanding of the applicable rules by Plaintiff’s counsel.
The Court further reiterates that the real source of the Plaintiff’s consternation is the
granting of an agreed motion—specifically Magistrate Judge Dinsmore’s order, found at Docket
No. 42, that the Defendant’s discovery was to be due on July 14, 2017, or seven days following
the Plaintiff’s deposition, whichever was later. The Plaintiff did not file an objection to that
order and by his silence acquiesced in defense counsel’s statement in the motion that she “ha[d]
spoken with Mr. Castelino’s counsel, and he does not object to this motion.”3 Dkt. No. 40 at 2.
The Plaintiff still does not acknowledge, let alone refute, this statement. A judicial officer is

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The Plaintiff’s statement in his brief that the motion in question (Rose-Hulman’s Agreed
Motion for Enlargement of Time to Respond to Discovery, Dkt. No. 40) “recited only that
Plaintiff had agreed to allow Defendant ‘until July’ for production without mention of Justin’s
deposition,” Dkt. No. 92 at 7, is simply false, as is his statement that “I did not agree to the Order
Magistrate Dinsmore issued, and he knew it.” Id. There is simply nothing before the Court that
indicates that Magistrate Judge Dinsmore had any reason to question defense counsel’s
representation that the motion was agreed. If it was not agreed, or if defense counsel
misunderstood the extent to which it was agreed, the reasonable and rational response would
have been for the Plaintiff to bring that fact to Magistrate Judge Dinsmore’s attention at the time.
The Plaintiff did not do so. Nor did the Plaintiff make that representation to the Court in its
original motion to disqualify, as the Court noted in its ruling. See Dkt. No. 88 at 3 (“The motion
is referred to as ‘agreed’ in its title, and paragraph 7 of the motion states: ‘The undersigned has
spoken with [Plaintiff’s] counsel, and he does not object to this motion.’ Dkt. No. 40. The
Plaintiff does not dispute this representation. It is difficult, to say the least, to understand how
the granting of an agreed motion could ever constitute bias by a judicial officer.”).
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entitled to rely on such representations by counsel; that reliance, in the absence of any contrary
information from the Plaintiff, cannot possibly serve as evidence of any bias on the part of
Magistrate Judge Dinsmore.
The Court’s original ruling fully explained its reasons for overruling the Plaintiff’s
objection to Magistrate Judge Dinsmore’s order continuing the preliminary injunction hearing,
and nothing in the Plaintiff’s motion to reconsider merits any additional discussion on that issue.
What does merit additional discussion are statements made by Plaintiff’s counsel in his
reply brief. Plaintiff’s counsel, John Thrasher, characterizes defense counsel’s ability “to predict
the outcome of our choosing to limit her deposition with surprising, or suspicious, accuracy,
when compared to the Magistrate Judge’s latest Order, Docket No. 70.” Dkt. No. 98 at 3. Mr.
Thrasher continues:
When the Magistrate warned me that processing our Motion to Terminate or
Limit Justin’s deposition would necessarily require that the hearing date be set
back, he at once presented a false fork and repeated almost exactly what [defense
counsel] predicted at the deposition, Tr. Vol 1 page 236 lines 3-13. This gives the
appearance of ex parte communication between them in violation of Canon
3(A)(4) of the Rules of Conduct for federal judges; it is a judge’s duty to avoid
even the appearance of impropriety. Canon 2. These Canons are two more rules
the Magistrate Judge seems to disregard.
Id. at 3-4. Far from suggesting an ex parte communication, the “prediction” made by defense
counsel echoed exactly statements that were made by Magistrate Judge Dinsmore on the record
during a discovery conference on June 13, 2017. At that conference, Magistrate Judge Dinsmore
stated that it was his recollection that the parties had agreed during a previous status conference,
held just a few days earlier on June 8th, that the Plaintiff’s deposition would be taken on June
15th. Mr. Thrasher had reneged on that agreement because, in his words, he “realized that RoseHulman had not provided what I needed to prepare for the deposition”; namely, its responses to
his discovery requests. Magistrate Judge Dinsmore noted that that had been discussed during
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the June 8th conference and Mr. Thrasher had not objected to the Defendant’s responses being
provided in early July, which was obviously after June 15th. Mr. Thrasher responded that he
understood the issue during the June 8th conference to be whether he needed the discovery to
prepare his brief in support of his motion for preliminary injunction, which he did not, but that he
had since realized he needed the discovery to defend his client’s deposition. Magistrate Judge
Dinsmore rejected this argument, stating that the Plaintiff needed only to answer questions
truthfully at the deposition and no discovery was needed for that. He also noted that the
Defendant had requested the deposition well before the Plaintiff had served his discovery
requests and had actively tried to schedule it since requesting it, and that the Defendant therefore
was entitled to take the deposition before it responded to the requests. He then stated that if the
deposition did not proceed on June 15th, “the chances that Judge Lawrence, I mean, that will
absolutely shoot any possibility that this thing can be briefed, let alone decided, before the first
of September, you understand that?”4
The allegedly “suspicious” statement by defense counsel during the deposition is as
follows:
But—but what I'm saying is that if—you know, we're quitting early today. We’ve
taken lots of breaks. If we don't get done tomorrow, I just don't want anyone to
object later that we're going to have to push back the briefing schedule and
possibly the August hearing on your preliminary injunction motion, which could
cause problems with a September start date for the fall quarter.
Castelino Dep. Vol. 1, p. 236 (quoted in Dkt. No. 98 at 3). When she made this statement,
defense counsel was simply repeating Magistrate Judge Dinsmore’s admonition, quoted above.
There is nothing “surprising” or “suspicious” about that. It was not a “prediction” of what

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This was based on the fact that defense counsel had a vacation planned in June and the
Plaintiff had represented that he would be unavailable during the entire month of July due to
international travel.
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Magistrate Judge Dinsmore would say; it was a recollection of what Magistrate Judge Dinsmore
had already said.
By making this baseless accusation of misconduct against Magistrate Judge Dinsmore
and defense counsel, Mr. Thrasher has come perilously close to crossing the line from vigorous
(if misguided) advocacy to sanctionable conduct. See, e.g., Indiana Rule of Professional
Conduct 8.2 (prohibiting statements regarding the integrity of a judge that are false or made with
reckless disregard as to their truth or falsity); Seventh Circuit Standards of Professional Conduct
¶ 4 (An attorney will not “absent good cause, attribute bad motives or improper conduct to other
counsel or bring the profession into disrepute by unfounded accusations of impropriety.”). Mr.
Thrasher is directed to review the Indiana Rules of Professional Conduct and the Seventh Circuit
Standards of Professional Conduct, both of which govern the conduct of attorneys appearing
before this Court, see Local Rule 83-5, and insure that he fully complies with those rules and
standards in all future filings, communications, and actions during the course of this case.
SO ORDERED: 9/8/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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