to the court. While the magistrate accepted defendants' explanation that the failure was inadvertent, he noted their "cavalier response" to his various orders and detailed their transgressions in a Report and Recommendation dated March 17, 1989, in which he ordered that the "temporary restraining order previously issued shall remain in full force and effect until resolution of the preliminary injunction motion." The magistrate had previously commented upon the need to maintain the status quo through the hearing and until resolution by an extension of the order. On March 17, 1989, he also extended the scope of the order to preclude defendants from soliciting and processing loan applications for current customers of the plaintiff because the evidence at the preliminary injunction hearing lent support to plaintiff's customer-stealing charges. Defendants object to both the extension and expansion.
A review of those objections requires reference to 28 U.S.C. § 636 and Rules 37, 65 and 72 of the Federal Rules of Civil Procedure, and we do so in the absence of either extended discussion by the parties or intensive analysis by the court. 28 U.S.C. § 636 and Rule 72 both limit the authority of the magistrate and this court. A magistrate cannot determine a motion for injunctive relief but he may conduct a hearing on that motion and issue a report and recommendation, the parties then having ten days in which to file objections. If a party fails to file timely objections he waives his right to appeal and the court may adopt the report and recommendation without further consideration. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986). A sanction imposed by a magistrate generally is a non-dispositive matter, with limited review of the order. The sanction may, however, be so drastic that it must be treated as a dispositive matter, 7-Pt. 2 Moore's Federal Practice para. 72.04[2-4], thus requiring a court order after de novo review. De novo review may, but generally need not, include the receipt of further evidence. Rule 37 does not specifically provide for injunctive relief as a sanction for failure to comply with an order. The specifically-enumerated orders are, however, orders "among others" which can be entered, and the court can enter any orders "as are just." A temporary restraining order is generally considered to be a temporary order without notice. 7-Pt. 2 Moore's Federal Practice para. 65.04. Pursuant to Rule 65 it may be entered for ten days and extended for ten days. It may be extended beyond that period by consent.
But what happens when even twenty days is a woefully inadequate time in which to prepare for, hear and decide a motion for preliminary injunction (and that is not uncommonly the case)? There is authority for the view that a temporary restraining order may be extended in those circumstances, although that order probably should be considered on appeal as in fact a preliminary injunction. 7-Pt. 2 Moore's Federal Practice para. 65.07. The information available to a court is generally incremental. Perhaps we should talk in terms of a temporary preliminary injunction, a coercive order of limited duration, justified by the record then available to the court and in place only until the motion for a preliminary injunction is decided after a full evidentiary hearing.
Here the first report and recommendation was for a preliminary injunction as a sanction. Perhaps this court should have granted it. There were ample reasons for the imposition of sanctions. The relief recommended was far less drastic than the most draconian sanctions authorized by Rule 37(b), which include the striking of pleadings and defaults. Indeed, the recommendation did not go much beyond telling the defendants they could not do what they insisted they had not done and were not going to do. Given the parallelism between the sanction recommended and preliminary relief granted on more usual grounds, the magistrate treated it as a dispositive matter requiring a court order, and he was probably correct in doing so.
But this court was concerned about the twilight zone between restraining orders and preliminary injunctions granted after a full and sufficient hearing, and we confined the order to ten days, with a ten-day extension thereafter. In the interim the magistrate entered his own restraining order, pending the hearing. Plaintiff did not seek an order from this court adopting that order (we assume that this court has the authority to order that a recommendation shall be immediately effective, pending the time to object and the time for that objection to be resolved, but at a minimum the prevailing party would, we believe, have to seek and obtain such an order). It would appear, then, that no effective order was in place after January 13, 1989, unless the defendants' consent resulted in such an order for the period after March 6, 1989.
Where does that leave us? Plaintiff has not moved this court to adopt the reports and recommendations of March 17, 1989, and defendants have filed objections. Normally, unless a party seeks implementation of a magistrate's recommendation this court will be unaware of any need to act until and unless there are objections and they are fully briefed. That point has been reached here (and was reached several weeks ago, and then the court was somehow led to believe that the parties might shortly resolve their disputes without further judicial intervention). Before the court is a recommendation for a sanction of the same scope as the original temporary restraining order. We have reviewed the voluminous submissions and their disclosure of numerous failures to comply with discovery orders for which there are inadequate justifications. We overrule the objections and approve the sanction. Before the court is a report and recommendation that this court expand the coercive relief on the basis of the evidence introduced at the preliminary injunction hearing. We treat it as a recommendation for a temporary preliminary injunction, pending a full recommendation. Defendants object, but they have not provided us with a transcription of the record nor have they made specific objections as to why the magistrate is in error in his view of the evidence, as required by Rule 72. We are not given sufficient reasons why we should reject the recommended decision and, accordingly, we overrule the objection and adopt the report and recommendation. The magistrate's report and recommendation on the entire motion for preliminary injunction will, of course, be subject to review pursuant to Rule 72.
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