Opinion
Cause No. 2:05-CV-151-RL.
February 10, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) (C)
This matter is before the Court on Defendants' Motion for Dismissal [DE 22], filed by the Defendants on December 5, 2005. The Plaintiffs did not file a response. On December 20, 2005, District Court Judge Rudy Lozano issued an Order [DE 23] referring this motion to the undersigned for a report and recommendation.
The Defendants seek to have the Plaintiffs' case dismissed due to the Plaintiffs' failure to comply with discovery requests and the Court's September 27, 2005 Order requiring the pro se Plaintiffs to respond to the Defendants' outstanding discovery on or before November 23, 2005.
On February 8, 2006, the undersigned Magistrate Judge conducted a Hearing on the Defendants' Motion for Dismissal. Plaintiff Gregory Klen appeared in person for the hearing. Plaintiff Christine Berglund, in violation of the Court's January 12, 2006 Order, failed to appear in person, but upon initiation by the Court, was able to participate telephonically in the Hearing.
At the Hearing, Plaintiff Berglund represented that she wishes to dismiss her claims against the Defendants. Attorney for the Defendants will mail a proposed Joint Stipulation for Dismissal for Plaintiff Berglund's signature. Plaintiff Klen represented that he wishes to go forward with his claims against the Defendants. More importantly, Plaintiff Klen represented that he returned the completed discovery requests to his prior counsel, Attorney Nathaniel Ruff, in November 2005. Counsel for the Defendants agreed to send Plaintiff Klen a new copy of the outstanding discovery requests, which Plaintiff Klen will complete and return to the Defendants' counsel on or before March 1, 2006. On oral motion of the Defendants, the Court also reset the dispositive motion deadline for June 1, 2006, and the discovery deadline for October 1, 2006.
After reviewing the Defendants' Motion and hearing argument of the parties, the Court RECOMMENDS that the District Court DENY the Defendants' Motion for Dismissal [DE 22] and that the District Court not impose any sanctions at this time. However, the Court RESERVES the right to recommend sanctions at a later date should Plaintiff Berglund fail to timely provide her signature on the proposed Joint Stipulation for Dismissal or should Plaintiff Klen fail to timely respond to the outstanding discovery.
This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B). Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have ten (10) days after being served with a copy of this Recommendation to file written objections thereto with the Clerk of Court. The failure to file a timely objection will result in waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n. 2 (7th Cir. 1988).
SO ORDERED.