Judges: PerCuriam
Filed: Oct. 30, 2013
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued October 9, 2013 Decided October 30, 2013 Before DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 13-1125 DELORES D. AMMONS-LEWIS, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 11 C 6920 METROPOLITA
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued October 9, 2013 Decided October 30, 2013 Before DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 13-1125 DELORES D. AMMONS-LEWIS, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 11 C 6920 METROPOLITAN..
More
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 9, 2013
Decided October 30, 2013
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1125
DELORES D. AMMONS‐LEWIS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 6920
METROPOLITAN WATER
RECLAMATION DISTRICT OF Gary S. Feinerman,
GREATER CHICAGO, Judge.
Defendant‐Appellee.
O R D E R
Delores Ammons‐Lewis appeals the dismissal of her employment‐discrimination
lawsuit for failure to prosecute. See FED. R. CIV. P. 41(b). After four months of missed
discovery deadlines and two warnings of possible dismissal, the magistrate judge in
charge of discovery recommended that the district court dismiss the suit because
Ammons‐Lewis still had not responded adequately to the defendant’s interrogatories.
No. 13‐1125 Page 2
Ammons‐Lewis did not timely object to the magistrate judge’s report and
recommendation, which the district court adopted. We affirm the dismissal.
Ammons‐Lewis, an African American, sued her employer, the Metropolitan
Water Reclamation District of Greater Chicago, claiming discrimination based on sex
and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e–17, and 42 U.S.C. § 1983. She also claimed that the Reclamation District had
violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 to 12213, by refusing to
provide a reasonable accommodation for her unspecified disability; violated the Family
and Medical Leave Act, 29 U.S.C. §§ 2601–54, by denying her leave to take care of her
sick daughter; and retaliated for filing charges with the Equal Employment Opportunity
Commission by lowering her job rating. She attached the charges of discrimination she
filed with the EEOC in 2008, 2009, and 2010.
On the Reclamation District’s motion, the district court dismissed the ADA claim
because it is not mentioned in an EEOC charge. The court then concluded that each
adverse action alleged by Ammons‐Lewis is a discrete event and therefore dismissed
her Title VII, § 1983, and FMLA claims to the extent those actions fall outside the
statutes of limitations. The court set a discovery deadline of August 31, 2012, and
referred the case to a magistrate judge for discovery supervision.
Discovery commenced, and on May 24, 2012, the Reclamation District sent
Ammons‐Lewis eight interrogatories. Five of them asked her to “[i]dentify each event,
incident, or other occurrence, numbering each one separately, that forms the basis” of
her sex discrimination, race discrimination, retaliation, FMLA, and § 1983 claims. The
Reclamation District requested details for each incident, including the date, location,
method of communication, people involved, description of the discriminatory act, how
it altered her conditions of employment, and how the Reclamation District treated
similarly situated employees more favorably. The Reclamation District also requested
the production of assorted documents related to the allegedly discriminatory actions.
The 30‐day deadline passed without a response. See FED. R. CIV. P. 33(b)(2), 34(b)(2)(A).
At a status hearing on July 20, 2012, counsel for Ammons‐Lewis acknowledged
that he had not provided responses but said he would be able to deliver them within
three days. He did not. And instead of appearing at an August hearing to address the
Reclamation District’s motion to compel, he left a message saying that he did not
oppose the motion. The magistrate judge, noting that counsel had “made promises to
No. 13‐1125 Page 3
the Court back on July 20th” that he would respond within three days, granted the
motion, awarded costs to the Reclamation District, and set a deadline of August 8.
On the deadline, counsel for Ammons‐Lewis asked the magistrate judge to
extend the deadline and reconsider the decision to award costs. The court decided that
costs were unwarranted because in‐house counsel was representing the Reclamation
District; the court then reluctantly granted a short extension but reminded the parties
that the cutoff for discovery was at the end of the month. Before the new deadline
passed, Ammons‐Lewis tendered to the Reclamation District an unsigned 70‐page
narrative instead of a properly formatted response to the defendant’s interrogatories.
The Reclamation District filed a second motion to compel, and the magistrate judge set
a new deadline of August 29. At a status hearing the magistrate judge warned, “I’m
on the verge of recommending” to the district judge “that he dismiss this case for want
of prosecution and for discovery violations” and admonished Ammons‐Lewis’s lawyer
to tell her “that she’s in very grave danger of having this case dismissed.”
On the new deadline, Ammons‐Lewis tendered another narrative, this one
signed and 100 pages. The magistrate judge again admonished Ammons‐Lewis and her
lawyer that he still was contemplating recommending dismissal for want of prosecution
because of their “foot dragging,” but he allowed two additional weeks to format the
narrative into proper answers to the interrogatories. At the end of those two weeks,
however, the narrative remained largely unchanged; Ammons‐Lewis, addressing the
court personally, explained that she had experienced difficulty drafting answers
because the interrogatories “actually asks for I’d say a thousand things” and she was
relying on redacted documents. Her lawyer did not say why Ammons‐Lewis was
drafting the answers instead of him. The magistrate judge, noting that the Reclamation
District had been unable to investigate the merits of the lawsuit without knowing what
events formed the basis of Ammons‐Lewis’s claims, decided to read the narrative
himself and recommend dismissal if it was “woefully inadequate.”
As the magistrate judge explains in his report and recommendation, the narrative
is disorganized and rambling, and although many of the paragraphs are numbered, the
numbers do not correspond to discrete incidents of alleged discrimination. Despite its
length, the narrative provides few responsive details. For example, Ammons‐Lewis
asserts that the alleged retaliation began after a 2007 complaint, but she simply lists
categories of retaliation and includes events before 2007, such as “unfair and unjust
investigations; 2001, 2002, 2007, 2010, 2011, 2012.” Her narrative lists many irrelevant
No. 13‐1125 Page 4
details, such as a chronology of her applications for disability benefits beginning in
1997. And she does not even attempt to identify the basis of her § 1983 claim.
The magistrate judge concluded that the narrative left the Reclamation District
without the information needed to prepare a defense and recommended dismissal for
want of prosecution, see FED. R. CIV. P. 41(b). The magistrate judge’s report explicitly
warned that if written objections were not filed within 14 days, they would be waived.
FED. R. CIV. P. 72(b)(2); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).
Ammons‐Lewis did not file any objections, leading the district court to adopt the
recommendation. Counsel for Ammons‐Lewis asked a week after the deadline for leave
to file late objections, see FED. R. CIV. P. 6(b)(1)(B); he blamed his tardiness on a heavy
caseload and computer problems. As part of her proposed objections, Ammons‐Lewis
argued that the delays and lengthy responses were justified by the complexity of the
Reclamation District’s requests. She also filed a motion to reconsider, contending that
the delays did not justify dismissal.
The district court denied both motions, concluding that Ammons‐Lewis’s lawyer
had not shown good cause or excusable neglect for the late objections because he had
filed motions in other cases and could have filed a request for an extension before the
deadline. And given the untimely objections, the court reasoned, its adoption of the
magistrate judge’s recommendation had not been error.
On appeal Ammons‐Lewis contends that dismissal for want of prosecution was
an abuse of discretion because the district court did not accept and consider her week‐
late objections to the magistrate judge’s report. But the district court properly noted that
a lawyer’s busy caseload does not excuse late submissions. Keeton v. Morningstar, Inc.,
667 F.3d 877, 883 (7th Cir. 2012); Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir.
2006) (“[I]t is widely accepted that neglect due to a busy schedule is not excusable.”).
In reviewing the district court’s decision for abuse of discretion, we consider whether
counsel had missed earlier deadlines or made other last‐minute requests for extensions
of time, see Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 593–94 (7th Cir. 2012);
Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006), and here Ammons‐Lewis’s
repeated delays provided ample reason for the district judge to refuse to consider the
late objections, see Spears v. City of Indianapolis, 74 F.3d 153, 157–58 (7th Cir. 1996)
(explaining that, because of earlier delays, court did not abuse discretion in denying
one‐day extension after lawyer’s computer allegedly broke down).
No. 13‐1125 Page 5
By not filing timely objections, litigants typically waive their right to challenge
on appeal the issues decided in a magistrate judge’s recommendation. See Tumminaro v.
Astrue, 671 F.3d 629, 633 (7th Cir. 2011); Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d
752, 760 n.7 (7th Cir. 2009). The rule is not jurisdictional, however, so we may decline to
apply waiver in the interest of justice. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Snyder
v. Nolen, 380 F.3d 279, 284–85 (7th Cir. 2004); Video Views, Inc. v. Studio 21, Ltd., 797 F.2d
538, 540 (7th Cir. 1986). But we see no reason to excuse Ammons‐Lewis’s waiver. The
magistrate judge concluded that dismissal was warranted because warnings of
sanctions, including dismissal for want of prosecution, had been ineffective in
producing timely compliance. The district court adopted this reasoning; that decision is
presumed reasonable, James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005), and
we have upheld dismissals in cases with similar discovery violations, see Fischer v.
Cingular Wireless, LLC, 446 F.3d 663, 664–66 (7th Cir. 2006) (explaining that pro se
plaintiff’s disregard for discovery deadlines and refusal to schedule deposition justified
dismissal); Aura Lamp & Lighting Inc. v. Int’l Trading Corp., 325 F.3d 903, 905–06 (7th Cir.
2003) (upholding dismissal where plaintiff missed court‐ordered deadlines and
delivered “incomplete and defective” responses four months late). By failing to timely
object to the magistrate judge’s report and recommendation, Ammons‐Lewis has
waived appellate review. See Lorentzen, 64 F.3d at 330.
AFFIRMED.