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WHITTAKER v. NIU BOARD OF TRUSTEES
March 12, 2004.
NIU BOARD OF TRUSTEES, et al.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Susan Whittaker, filed objections to an order of the
magistrate judge entered December 30, 2003, denying plaintiff's motion to
strike defendants' (Board of Trustees, Northern Illinois University,
Steven Wilhelm, Sr., and Jon Slater) affirmative defenses one and two and
to bar evidence on affirmative defense three. She also filed objections
to the magistrate judge's order of January 7, 2004, denying her motion
for sanctions. Plaintiff purports to bring these objections pursuant to
Fed.R.Civ.P. 72(b) but Rule 72(b) applies only to recommendations by
a magistrate judge on a pretrial matter dispositive of a claim or defense
assigned to the magistrate judge without consent of the parties. Neither
of the orders entered by the magistrate judge are dispositive of a claim
or defense. Instead, these objections are governed by Rule 72(a) which
concerns nondispositive pretrial matters.
A magistrate judge's ruling on a nondispositive pretrial matter may be
reconsidered only if clearly erroneous or contrary to law.
28 U.S.C. § 636(b)(1)(A); U.S. v. Brown, 79 F.3d 1499, 1503 (7th Cir.),
cert. denied, 519 U.S. 875 (1996). The magistrate judge concluded the
motion to strike the first two affirmative defenses was untimely because
it was filed 17 months after the answer containing them was filed rather
than within 20 days as required by Rule 12(f). A review of the record
discloses this decision was not clearly erroneous. Additionally, these
affirmative defenses actually only assert that plaintiff cannot prove
discrimination or retaliation because they did not occur. Plaintiff has
to prove these facts whether there is an affirmative defense challenging
them or not. As to the request to bar testimony on the third affirmative
defense for failure to disclose, the magistrate judge concluded plaintiff
was in actual possession of the materials she claimed had not been
disclosed. Again, the record does not require a finding that the
magistrate judge's decision was clearly erroneous. The court is not "left
with the definite and firm conviction that a mistake has been made" and
therefore cannot overturn the magistrate judge's rulings. Weeks v.
Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Plaintiff also objects to the magistrate judge's January 7, 2004, order
denying her request for sanctions due to problems concerning the
deposition of Tammy Piercy and a motion for sanctions filed by
defendants. The magistrate judge has a much higher familiarity with the
parties and the conduct of discovery than does this court. The magistrate
judge analyzed the requests for sanctions and reviewed the issues related
to Ms. Piercy's deposition and entered an order resolving those issues.
It cannot be said that a decision not to sanction defendants was clearly
erroneous. Sanctions are not mandatory and it cannot be said that the
magistrate judge definitely made a mistake. See Weeks, 126 F.3d at 943.
For the foregoing reasons, plaintiff's objections to the magistrate
judge's orders are denied.
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