Kennedy v. Electricity, CAUSE NO.: 2:12-CV-122-JVB-JPK
| Decision Date | 06 March 2019 |
| Docket Number | CAUSE NO.: 2:12-CV-122-JVB-JPK |
| Parties | BENNIE KENNEDY, Plaintiff, v. SCHNEIDER ELECTRIC f/k/a SQUARE D COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on a Verified Motion to Stay Further Proceedings, in the Alternative, Extension of Time to Comply with Court's Order [DE 101], filed by John H. Davis, counsel for Plaintiff Bennie Kennedy, on February 5, 2019, and on a Verified 2nd Objection to the Exercise of Jurisdiction of the Newly Appointed Magistrate Judge Joshua P. Kolar in the Above Captioned Case [DE 104], filed by Davis on February 9, 2019. Defendant Schneider Electric ("Schneider") filed a response to the Motion to Stay on February 21, 2019.
This matter is also before the Court on a Verified Motion to Strike Defendant's Response in Opposition to Plaintiff's Request for Extension of Time Which Is Being Submitted to Article III Judge [DE 108], filed by Davis on February 27, 2019.
PROCEDURAL HISTORY
This case was filed in Lake County, Indiana, Circuit Court in February 2012 and was removed to this Court on March 20, 2012. Plaintiff brought claims of defamation and malicious interference with an advantageous relationship against Defendant Schneider Electric.1 Schneider filed a motion to dismiss, which the Court denied.
The case was initially assigned to District Court Judge Jon E. DeGuilio as the presiding judge and Magistrate Judge Paul R. Cherry as the referral judge. A Notice and Consent form dated April 30, 2013, and signed by counsel for Plaintiff and counsel for Schneider is on the docket at entry number 28. The form indicates that the parties consented to "a magistrate judge's authority." (Notice and Consent, ECF No. 28). The form did not specify that the parties were consenting to Judge Cherry in particular. On May 8, 2013, after the Court received consent forms from all parties, the case was reassigned to Judge Cherry as the sole presiding judge.
The case proceeded through discovery. After discovery closed, Schneider filed a motion for summary judgment, which the Court granted on September 5, 2014.
On April 13, 2016, Plaintiff filed a motion to set aside the judgment, which was stricken for procedural reasons. The motion was refiled on May 24, 2016. Plaintiff filed a motion to disqualify Judge Cherry on June 30, 2016. On July 13, 2016, Schneider filed a motion for sanctions against Plaintiff and Attorney Davis. On March 1, 2017, the Court denied the motion to disqualify Judge Cherry, denied the motion to set aside the judgment, and granted the motion for sanctions. The Court found:
Had Plaintiff's counsel made a reasonable investigation of the facts and law necessary to support a motion to set aside judgment for fraud on the court, he would have found that Plaintiff's Motion was not warranted by existing law. Plaintiff's counsel made no non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law. Pursuant to Rule 11(c), sanctions are warranted.
(Op. & Order, ECF No. 72). The Court awarded in favor of Schneider and against Davis Schneider's reasonable costs and attorney fees incurred in defending against the motion to set aside judgment and in bringing the motion for sanctions, an amount later determined to be $10,627.16.
Plaintiff and Davis appealed the Court's orders on the motion to disqualify Judge Cherry, motion to set aside judgment, and motion for sanctions and the order awarding $10,627.16 toSchneider. On June 19, 2018, the Seventh Circuit Court of Appeals affirmed the Court's rulings. Davis's petition for panel rehearing was denied. On October 22, 2018, the Plaintiff and Davis filed a Petition for a Writ of Certiorari, seeking review from the Supreme Court of the United States. See Petition for Writ of Certiorari, Kennedy v. Schneider Electric, (No. 18-885) (Oct. 22, 2018). That petition was denied on March 4, 2019.
On October 26, 2018, Schneider filed a motion to find Davis in contempt, or, alternatively, to enforce the sanctions award. Davis did not file a response to that motion. Instead, he filed a motion to stay proceedings and change the presiding judge—who was Judge Cherry. Schneider's motion was granted as to the request to enforce the sanctions award. Davis was ordered to pay the sanctions award by January 22, 2019. Davis's motion to stay was stricken for failure to comply with Northern District of Indiana Local Rule 7-1(a). Davis refiled his motion to stay on December 28, 2018, asking that the enforcement of the sanctions award be stayed until after the Supreme Court of the United States resolves his petition for writ of certiorari.
Judge Cherry retired, and on January 4, 2019, the case was reassigned to the undersigned magistrate judge. On January 7, 2019, the Court issued an Order that gave the parties an opportunity to object to the undersigned continuing to preside over this case. The parties were offered this option to object even though they had previously consented to the authority of "a magistrate judge" and not Judge Cherry specifically. After the objection was filed, the case was reassigned to Judge Joseph S. Van Bokkelen as the presiding judge. The undersigned remained on the case as magistrate judge in a referral role.
Before the case was reassigned to Judge Van Bokkelen as the presiding judge, the undersigned denied without prejudice the refiled motion to stay, finding that, though Davis asked for a ruling from Chief Judge Theresa L. Springmann, the undersigned had authority to rule on thenon-dispositive motion. The Court also found that Davis had not met the standard for a stay pending resolution of his petition for writ of certiorari. The Court extended to February 6, 2019, Davis's deadline to pay the sanctions award.
DAVIS'S MOTION TO STAY OR EXTEND DEADLINES
AND MOTION TO STRIKE
Davis filed the instant motion to stay or extend deadlines on February 5, 2019. He again asks for a stay of the enforcement of the sanctions award pending resolution of his petition for writ of certiorari. He also requests the alternative relief of an extension of time to comply with the order to pay the sanctions award. He asks for an extension of at least six months and represents that he is a solo practitioner and does not have the funds necessary to satisfy the sanctions award on hand.
On January 6, 2019, the Court denied without prejudice the request for a stay, finding that Davis had not met the standard for a stay pending the resolution of a petition for writ of certiorari. The Court took under advisement the request for an extension of time and indicated that the briefing on the matter would follow the deadlines as set forth in the local rules. The Court also ordered Davis to confer with counsel for Schneider regarding a possible agreed payment plan.
Schneider, in its response brief, represents that Davis failed to confer with Schneider as ordered by the Court. Schneider asks that the extension of time be denied on this basis.
Davis, in his Verified Motion to Strike, argues that Schneider missed its opportunity to respond to the instant motion because the Court indicated in a previous Opinion and Order that Schneider's deadline to respond to a prior motion to stay passed. Davis also seeks expenses and attorney's fees based on Schneider's response.
DAVIS'S SECOND OBJECTION
On February 9, 2019, Davis filed his second objection to the exercise of jurisdiction by the undersigned. In the second objection, Davis argues that the grant of summary judgment inSchneider's favor was incorrect and that, subsequently, the sanctions awarded against Davis are improper. Davis also argues that the Court cannot "interfere" with a pending petition for writ of certiorari and that "any additional order of the District Court such as requiring the plaintiffs to put up a bond until the appeal is exhausted would also cause irreparable harm." (Verified 2nd Obj. 3, ECF No. 104).
Davis asserts that Judge Cherry "appeared to undermine the Federal Rule of Civil Procedure 83 by using Local Rules which are clearly controlled by Federal Rule of Civil Procedure 83 which takes precedence over Local Rules." Id. Because Davis does not clarify in what manner the rules were purportedly undermined, how he was adversely affected by Judge Cherry's actions, or what sort of relief he would like, the Court is unable to address or provide relief on the basis of this assertion.
Davis next cites to the code provision regarding a magistrate judge's ability to exercise civil contempt authority in cases in which the magistrate judge presides over the case by consent of the parties. Davis maintains that the undersigned "is not being given consent to preside over this case in any manner." Id.
Finally, Davis argues that he cannot comply with the Court's order to confer with counsel for Schneider about a possible agreed payment plan because it would "contradict the appeal before the United States Supreme Court and would be tantamount to creating a frivolous filing for a Petition for a Writ of Certiorari." Id. at 4.
ANALYSIS
The issues of summary judgment and sanctions have been resolved and are not currently before the Court for consideration.
Davis has repeatedly asked the Court for a stay of the proceedings in this Court pending the resolution of his petition for writ of certiorari. Because the petition was denied on March 4, 2019, the issue is moot. Even if the issue were still before the Court, stays such as the one Davis requests are not automatic. As the Court stated in its January 23, 2019 Opinion and Order, stays pending the resolution of a petition for writ of certiorari are governed by 28 U.S.C. § 2101, which provides:
In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of...
To continue reading
Request your trial