VESTAL v. HEART OF CARDON, LLC

Filing 74

ENTRY - Dr. Moore and Lyons clearly disagree with the Magistrate Judge's evaluation of the proceedings and conclusion that Dr. Moore's presence at the upcoming settlement conference would aid in the resolution in this matter. But their dis agreement does not equate to clear or legal error, and the Magistrate Judge amply justified his decision with a discussion of relevant law and unchallenged observations from the first, unsuccessful settlement conference in this matter. The Court therefore OVERRULES Lyons' Objection 72 and AFFIRMS the Magistrate Judge's order that Dr. Moore personally attend the September 24 settlement conference. (See Entry.) Signed by Judge Jane Magnus-Stinson on 9/4/2018. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
NIKKI J. VESTAL,
Plaintiff,
v.
HEART OF CARDON, LLC,
Defendant.

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No. 2:17-cv-00155-JMS-MJD

ENTRY
Dr. Stephen Moore, the CEO of Defendant Heart of CarDon, LLC (“Lyons”), does not
want to attend a settlement conference scheduled in this employment case for September 24, 2018.
Lyons moved for leave from the Magistrate Judge’s order requiring Dr. Moore’s attendance,
[Filing No. 68], moved for reconsideration once the Magistrate Judge denied Lyons’ motion for
leave, [Filing No. 70], and, perhaps hoping that the third time might be a charm, has now objected
to the Magistrate Judge’s order, [Filing No. 72]. But Lyons has provided no reason to suggest that
the Magistrate Judge’s order requiring Dr. Moore’s attendance was clearly erroneous, contrary to
law or even an abuse of discretion. Accordingly, for the reasons set forth below, the Court
OVERRULES Lyons’Objection to the Magistrate Judge’s order.
I.
LEGAL STANDARD
Review of a magistrate judge’s decision on a nondispositive motion is deferential, and the
Court may sustain an objection to such an order only where it is “clearly erroneous or is contrary
to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). An order is clearly erroneous “only if
the district court is left with the definite and firm conviction that a mistake has been made.” Weeks
v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). “An order is contrary

to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Pain
Center of SE Ind., LLC v. Origin Healthcare Solutions, LLC, 2014 WL 6674757, *2 (S.D. Ind.
2014) (citations and quotation marks omitted).
II.
BACKGROUND
On April 5, 2017, Ms. Vestal filed this lawsuit alleging among other things that Lyons
terminated her because of her disability. [See Filing No. 1.] On July 5, 2017, the Magistrate Judge
scheduled a settlement conference in this matter, directing that each party be represented by a
client representative “with complete authority to negotiate and communicate a settlement” and
that, “unless excused by written order of the court, . . . an officer . . . of every corporate entity that
is a party[] shall attend the settlement conference.” [Filing No. 14 at 1-2.] On October 2, 2017,
Lyons sought leave from the officer attendance requirement, [Filing No. 27], which was granted
to the extent that the CEO or CFO “must be available by telephone . . . in the event their
participation in the conference is deemed necessary by the Magistrate Judge,” [Filing No. 28 at 2].
The first, pre-summary judgment settlement conference was held before the Magistrate
Judge on October 30, 2017. [Filing No. 30.] After the settlement conference proved unsuccessful,
[Filing No. 30], Ms. Vestal filed an Amended Complaint, [Filing No. 41], and voluntarily
dismissed certain claims, [Filing No. 47].
On March 14, 2018, Lyons moved for summary judgment. [Filing No. 53.] On June 15,
2018, the Court granted Lyons’ motion in part and denied it in part, finding that genuine issues of
material fact concerning Ms. Vestal’s ADA claims precluded summary judgment. [Filing No. 66.]
The Court “request[ed] that the Magistrate Judge confer with the parties regarding the possibility
of settlement.” [Filing No. 66 at 28.]

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On June 20, 2018, the Magistrate Judge scheduled a second, post-summary judgment
settlement conference for September 24, 2018. [Filing No. 67.] The Magistrate Judge ordered
that Ms. Vestal appear in person by counsel and that Lyons appear by its CEO and by counsel.
[Filing No. 67 at 1.] The Magistrate Judge further ordered that “[a] request to vacate or continue
the settlement conference must be made by motion filed with the court on or before June 27, 2018,
except in exigent circumstances.” [Filing No. 67 at 2 (emphasis omitted).]
On August 7, 2018, Lyons moved for relief from the requirement that Dr. Moore appear at
the settlement conference. [Filing No. 68.] Lyons requested that another “member of its fourperson Senior Executive Team,” with full settlement authority, be permitted to appear in Dr.
Moore’s stead and stated that “Dr. Moore is presently scheduled to preside over executive-level
financial review meetings unrelated to this case in the afternoon of September 24, 2018.” [Filing
No. 68 at 2.]
On August 9, 2018, the Magistrate Judge denied Lyons’ motion to excuse the CEO. [Filing
No. 69.] The Magistrate Judge noted that Dr. Moore’s scheduling conflict should have been
brought to the Court’s attention by the June 27 deadline to enable the Court and parties to mutually
select an available date. [Filing No. 69 at 1-3.] The Magistrate Judge observed as follows:
Most important from the Court’s perspective is that this is not the first settlement
conference in this case. The Court conducted a settlement conference on October
20, 2017 that did not result in a resolution of the case. Instead the parties elected to
proceed to summary judgment. That motion has now been resolved and Plaintiff’s
claims under the Americans with Disabilities Act will proceed to trial if this matter
is not resolved by settlement. This matter had already consumed a significant
amount of judicial resources and will incur significantly more, at significant
expense to the parties, if this matter is not resolved prior to trial. Given the
procedural status of the case and the positions taken by Defendant at the previous
settlement conference, the Court believes that Dr. Moore’s presence at the
September 24, 2018 settlement conference is essential to any possible resolution of
this matter.

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The attendance requirement of Dr. Moore is not “so onerous, so clearly
unproductive, or so expensive in relation to the size, value, and complexity of the
case that it might be an abuse of discretion.” [G. Heileman Brewing Co. v. Joseph
Oat Corp., 871 F.2d 648, 654 (7th Cir. 1989)]. Any scheduling burdens were not
communicated to the Court in the ample time given to the Defendant pursuant to
the scheduling order, nor were exigent circumstances raised in the Defendant’s
motion to outweigh the “benefits to be gained, not only by the litigants but also by
the court” by the presence of Defendant’s chief executive officer at the settlement
conference. Id.
[Filing No. 69 at 4-5 (internal footnote and record citations omitted).]
On August 13, 2018, Lyons moved for reconsideration of the Magistrate Judge’s order
excusing the CEO, arguing that the Magistrate Judge was mistaken in raising the deadline to
vacate as a grounds for denial, that the motion was unopposed, and that the proposed corporate
representative would better fulfill “the primary objective of the conference.” [Filing No. 70 at 3.]
The next day, the Magistrate Judge denied Lyons’ motion for reconsideration in a marginal entry,
explaining that he had fully considered and addressed Lyons’ arguments in his initial order.
[Filing No. 70 at 1.]
On August 17, 2018, Lyons filed its Objection to the Magistrate Judge’s order denying its
motion to excuse Dr. Moore. [Filing No. 72.] The time for further briefing has expired, see S.D.
Ind. L.R. 7-1(b)(3)(B), and Lyons’ Objection is ripe for decision.
III.
DISCUSSION
Lyons objects to the Magistrate Judge’s denial of its motion to excuse on several grounds.
First, while not labelled as a separate argument, Lyons continues to suggest that the Magistrate
Judge erred by citing to the deadline for seeking continuances to support denying its motion to
excuse. [See Filing No. 72 at 3.] Second, Lyons argues that its proposed representative would be
better suited to resolving this matter and that requiring the CEO to attend imposes an unreasonable
burden on Lyons and “goes directly against the desire of the parties.” [Filing No. 72 at 4-6.]
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Finally, Lyons suggests that the Magistrate Judge’s order was motivated by “animus,” as evinced
by a recent telephonic conference in a different lawsuit at which the Magistrate Judge chastised
Lyons’ counsel for not informing Dr. Moore—a party-defendant to that lawsuit—of the
requirement that all parties appear in person for a settlement conference. [Filing No. 72 at 6-8.]
In response, Ms. Vestal clarifies that while she did not object to Lyons’ motion to excuse
its CEO, she “is confident in Judge Dinsmore’s judgment and sees no reason to amend his orders
on the settlement conference.” [Filing No. 73 at 1.]
In short, the Court agrees with Ms. Vestal that Lyons has failed to present any grounds for
reversing the Magistrate Judge’s order requiring Dr. Moore to appear in person at the settlement
conference. Federal Rule of Civil Procedure 16(c) provides that, “[i]f appropriate, the court may
require that a party or its representative be present . . . to consider possible settlement.” Fed. R.
Civ. P. 16(c). “The spirit, intent, and purpose of Rule 16 is broadly remedial, allowing courts to
actively manage the preparation of cases for trial. Rule 16 is not designed as a device to restrict
or limit the authority of the district [court] in the conduct of pretrial conferences,” and the district
court holds the “inherent authority to preserve the efficiency . . . of the judicial process.” G.
Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (en banc) (applying
1987 version of Rule 16). The 1997 Amendment to Rule 16(c) codified what the Seventh Circuit
had long ago held: the district court holds the power to “direct that . . . a responsible representative
of the parties be present,” recognizing that, “depend[ing] on the circumstances,” the representative
could be “an officer of a corporate power.” Fed. R. Civ. P. 16(c) advisory committee’s note (1993
Amendment). The Rules Committee reiterated the Seventh Circuit’s holding in G. Heileman that
“[t]he explicit authorization in the rule to require personal participation in the manner stated is not
intended to limit the reasonable exercise of the court's inherent powers.” Id.

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The Magistrate Judge’s order complies with the directives of Rule 16(c) and the principles
announced by the Seventh Circuit in G. Heileman. None of Lyons’ contentions demonstrate clear
or legal error. First, Lyons continues to rehash its argument that the Magistrate Judge should not
have cited the deadline for seeking continuances in denying its motion to excuse. But as the
Magistrate Judge explained, Lyons has emphasized the burden that the settlement conference will
impose upon Dr. Moore. The Magistrate Judge observed that a timely motion to continue would
have permitted all interested parties to select a date more convenient than September 24, when Dr.
Moore apparently has “financial review meetings” scheduled. That observation is without error.
Next, Lyons relies upon nothing more than ipse dixit to support its argument that requiring
Dr. Moore to appear in person would be unduly burdensome and counterproductive. Most
critically, Lyons completely fails to address the Magistrate Judge’s finding that the “positions
taken by Defendant at the previous settlement conference” impeded progress toward a negotiated
resolution and that “[t]his matter ha[s] already consumed a significant amount of judicial resources
and will incur significantly more, at significant expense to the parties, if this matter is not resolved
prior to trial.” [Filing No. 69 at 4.] Indeed, this Court is the second busiest district court in the
country as measured by weighted filings per judgeship, United States Courts, U.S. District Courts
– Combined Civil and Criminal Federal Court Management Statistics, (June 30, 2018),
http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2018.pdf,

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the Magistrate Judge correctly took into account the Court’s interest in expediently resolving
pending matters. Though Lyons may disagree that requiring Dr. Moore’s attendance will expedite
the resolution of this matter, its disagreement in the face of the Magistrate Judge’s assessment of
the unsuccessful first settlement conference falls far short of demonstrating clear error.

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Finally, Lyons levels the serious charge that the Magistrate Judge’s orders are motivated
not by “the just, speedy, and inexpensive determination of every action and proceeding,” Fed. R.
Civ. P. 1, but by “animus,” [Filing No. 72 at 6]. Lyons’ argument is meritless. To the extent
Lyons’ counsel complains about being chastised by the Magistrate Judge in another matter for
failing to advise Dr. Moore, who was a party-defendant, of the routine requirement that all parties
personally attend the settlement conference, that injury may only be fairly characterized as selfinflicted. Courts have imposed and upheld sanctions far more severe than chastisement for
ignoring the personal attendance requirement. See, e.g., G. Heileman, 871 F.2d at 650 (upholding
sanction of $5,860.01 in costs and fees where “a principal of the corporation” failed to attend
settlement conference); Ivan Ware & Son, Inc. v. Delta Airaq, Inc., 2017 WL 379459 (W.D. Ky.
2017) (adopting recommendation to impose sanction of $2,500 against defendant who failed to
appear at settlement conference); Brake Plus LLC v. Kinetech, LLC, 2015 WL 859368 (S.D. Ind.
2015) (adopting recommendation to enter default against two defendants who failed to appear at
settlement conference and subsequent show cause hearing).
Moreover, the Magistrate Judge’s order does not demonstrate that Lyons’ counsel has been
singled out in any way. Magistrate Judge Dinsmore has more than occasionally ordered that
particular executives or other directors attend post-dispositive motion settlement conferences when
he has deemed it necessary to the resolution of the case. E.g., Minute Entry, Elder Care Providers
of Ind., Inc. v. Home Instead, Inc., No. 1:14-cv-1894-SEB-MJD (S.D. Ind. Oct. 12, 2017), ECF
No. 350 (“[E]very individual party, and the chief executive officer of every corporate entity that
is a party, shall attend the settlement conference”); Scheduling Order, Edson v. Dreyer & Reinbold
Inc., No. 1:15-cv-861-TWP-MJD (S.D. Ind. Dec. 30, 2016), ECF No. 58 (“Plaintiff Karla Edson
and the President/Chief Executive Officer of Defendant Dreyer & Reinbold, Inc. shall attend the

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settlement conference in person.”); Scheduling Order, Contour Hardening, Inc. v. Vanair Mfg.,
Inc., No. 1:14-cv-26-JMS-MJD (S.D. Ind. Dec. 14, 2015), ECF No. 93 (ordering CEO of both
parties to attend settlement conference); cf., e.g., Scheduling Order, Breitweiser v. Hunt, 1:15-cv1687-TWP-MJD (S.D. Ind. Feb. 16, 2018) (ordering all counsel, named parties, and current
directors of Indiana Department of Child Services to attend hearing on issues regarding settlement
resolution). This confirms that the Magistrate Judge was exercising his discretion in light of the
circumstances of this case, just as he has done in the thousands of cases to come before him. In
short, Lyons’ claim of “animus” is wholly unsupported and fails to demonstrate clear or legal error
in the Magistrate Judge’s order.
IV.
CONCLUSION
Dr. Moore and Lyons clearly disagree with the Magistrate Judge’s evaluation of the
proceedings and conclusion that Dr. Moore’s presence at the upcoming settlement conference
would aid in the resolution in this matter. But their disagreement does not equate to clear or legal
error, and the Magistrate Judge amply justified his decision with a discussion of relevant law and
unchallenged observations from the first, unsuccessful settlement conference in this matter. The
Court therefore OVERRULES Lyons’ Objection [72] and AFFIRMS the Magistrate Judge’s
order that Dr. Moore personally attend the September 24 settlement conference.

Date: 9/4/2018

Distribution via ECF only to all counsel of record
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