Opinion
Case No. 04-74627.
November 22, 2005
ORDER RESCINDING REPORT AND RECOMMENDATION AND SETTING DATE FOR ORAL ARGUMENT
On November 1, 2005, the undersigned filed a Report and Recommendation (RR), recommending that the Complaint be dismissed pursuant to Fed.R.Civ.P. 37(b)(2). See Docket #23. That RR was premised, in part, on the assumption that Plaintiff had not responded to either the underlying Motion for Sanctions filed on July 12, 2005 (Docket #14), or the Court's order to show cause entered on September 26, 2005 (Docket #20). As shown by the docket entries in this case, that assumption was incorrect. On October 7, 2005, Plaintiff filed a Response to Motion for Sanctions (Docket #21) which purports to excuse Plaintiff's alleged non-compliance with this Court's previous discovery order, and argues that dismissal is not an appropriate sanction.
Viewed as a response to the Defendant's original motion, which had been filed on July 12, 2005, this pleading was grossly untimely. Viewed as a response to the order to show cause, it was untimely by one day.
Accordingly, the Report and Recommendation filed on November 1, 2005 [Docket #23] is RESCINDED.
Counsel for both parties will appear for argument on Defendant's Motion for Sanctions (Docket #14) on TUESDAY, DECEMBER 13, 2005 at 10:00 a.m., in Courtroom 662, Theodore Levin United States Courthouse, Detroit, MI.
SO ORDERED.