IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

KENNETH W. MARCUM, )

)

Plaintiff, )

)

vs. ) NO. 1:13-CV-158

)

GRAPHIC PACKAGING INTERNATIONAL, )

INC., and CIGNA LEAVE SOLUTIONS, )

)

Defendants. )

ORDER

This matter is before the Court on the Report and Recommendation

of Magistrate Judge Roger B. Cosbey (DE #38) dated October 29, 2013,

and Plaintiff’s Objection to Attorney’s Fees and Costs (DE #40), filed

by Kenneth W. Marcum (“Marcum”) on November 12, 2013. For the reasons

set forth below, the objection is OVERRULED and the report and

recommendation is ADOPTED. 

BACKGROUND

Marcum filed a complaint against Defendants in Nobel Superior

Court alleging violations of the Family Medical Leave Act (“FMLA”). 

Defendants removed the case to federal court. On August 16, 2013, 

Defendants filed a motion to compel alleging a variety of discovery

abuses. A hearing took place before Magistrate Judge Cosbey on August

28, 2013. Neither Marcum nor his counsel appeared for the hearing. 

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Magistrate Judge Cosbey granted the motion to compel in part and

denied the motion in part. (DE# 23-24). Marcum was ordered to serve

and supplement his Rule 26 disclosures by September 6, 2013, and to

serve responses (or in some cases supplemental responses) to

interrogatories and requests for production by Graphic Packaging

International and Life Insurance Company of Norther America

(improperly named as Cigna Leave Solutions). The request for

attorneys fees and costs was taken under advisement. A hearing was

scheduled for September 20, 2013, in which Marcum and his counsel were

ordered to appear and show cause why they were not present at the

August 28, 2013, hearing. On September 16, 2013, Defendants filed

their fee petition relating to the previously granted motion to

compel.

Two days later, on September 18, 2013, Defendants filed a motion

titled “Defendants’ Motion to Dismiss or, in the Alternative, to

Enforce.” (DE #26). In short, the motion alleged continued discovery

abuses and sought dismissal as a sanction, or if the Court was

unwilling to dismiss the case, an enforcement of Magistrate Judge

Cosbey’s previous order on the motion to compel. This Court referred

the matter to Magistrate Judge Cosbey for a Report and Recommendation. 

(DE #28). 

The same day this Court referred the matter to Magistrate Cosbey,

the aforementioned show-cause hearing was held, and a briefing

schedule was established for the motion to dismiss the case or enforce

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the court’s previous order. No sanctions were imposed on Marcum or

his attorney for their failure to appear at the August 28, 2013,

hearing. However, Magistrate Judge Cosbey granted the Defendants’

request for fees related to filing the previously granted motion to

compel. Magistrate Judge Cosbey awarded a reduced fee amount of

$3,085.50 against Marcum and his counsel jointly. 

On October 18, 2013, following briefing of the motion to dismiss

or enforce, Magistrate Judge Cosbey held a hearing on the matter. On

October 29, 2013, Magistrate Judge Cosbey issued his Report and

Recommendation, and after a thorough analysis he recommended:

that the Defendants’ motion to dismiss be denied,

motion to enforce be granted, and the following

sanctions be imposed on Marcum: (1) limiting his

potential damages to lost wages along with

attorney’s fees; (2) limiting his witnesses to

only Ted Bates, Cherri Marcum, and April Kemp;

(3) establishing his lost wages per week at $760;

(4) ordering payment of one-half of the

attorney’s fees previously imposed within 30

days; (5) staying his discovery until he complies

with this Order; and (6) that Marcum and his

counsel pay Defendants’ fees and costs associated

with bringing this motion. 

(DE #38 at 10-11). On November 5, 2013, Marcum filed a timely

objection to the report and recommendation. Defendants have filed a

response to the objection. Accordingly, both the report and

recommendation and Marcum’s objection are ripe for adjudication. 

DISCUSSION

When a party makes objections to a magistrate judge’s

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recommendations, “[t]he district court is required to conduct a de

novo determination of those portions of the magistrate judge’s report

and recommendations to which objections have been filed.” Goffman v.

Gross, 59 F.3d 668, 671 (7th Cir. 1995). “[T]he court may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);

see also Fed. R. Civ. P. 72(b).

Marcum challenges only one aspect of Magistrate Judge Cosbey’s

recommendation: the recommendation that Marcum pay Defendants’

attorneys fees and costs associated with bringing the motion to

dismiss that is the subject of the report and recommendation. There

are several problems with the objection. 

The objection is very short (essentially four short numbered

paragraphs) and completely lacking in legal authority. The objection

is also inconsistent. Marcum asserts in one sentence that he has no

objection to Magistrate Judge Cosbey’s recommendation set forth in the

conclusion of the report and recommendation, but in the very next

paragraph he objects to one of those recommendations: that he pay the

costs and fees for the bringing of the motion that was referred to the

magistrate judge. 

Putting that inconsistency aside, the remainder of his argument

is, in full, as follows: 

3. To pay for Defendants’ motion to dismiss,

which was denied, would create a double sanction

and that relieve [sic] was not warranted. The

court could on its own have dismissed the case. 

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It did not. 

4. The payment of Attorney’s fees and costs to

dismiss is not justified or warranted in these

circumstances.

(DE #40, pg. 1). 

Contrary to the assertion in the objection, at the time the

objection was filed the motion to dismiss had not yet been denied. 

The magistrate’s report and recommendation is just that - a

recommendation. Further, Marcum completely fails to explain why he

believes the magistrate judge’s recommendation would create a double

sanction. It doesn’t - the previous fee petition was limited to fees

and costs incurred in filing the motion to compel, and Magistrate

Judge Cosbey has recommendied that there be a second award of fees

associated with the filing of the motion to dismiss or enforce.

Federal Rule of Civil Procedure 37(b)(2) contemplates such an award.

Marcum also appears to be arguing that an award of fees is not

warranted because Magistrate Judge Cosby recommended that the motion

to dismiss be denied. Marcum ignores the fact that one motion was

filed seeking alternative forms of relief: either dismissal or an

order enforcing the court’s previous order granting a motion to

compel. The request that the case be dismissed was reasonable under

the circumstances. Magistrate Judge Cosbey did not recommend that the

harshest of the requested relief be granted, but nonetheless

recommended that the Defendants be granted relief. The Defendants’

motion to dismiss or in the alterative enforce was well founded. 

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Indeed, Marcum has not even challenged most aspects of Magistrate

Judge Cosbey’s recommendation granting a variety of sanctions for

failure to comply with the Court’s previous order. Under these

circumstances, an award of fees is wholly appropriate.

CONCLUSION

For the reasons set forth above, the Court OVERRULES Marcum’s

objection to the report and recommendation of Magistrate Judge Cosbey

(DE #40) and ADOPTS the report and recommendation (DE #38). 

Defendants’ Motion to Dismiss or, in the Alternative, to Enforce is

GRANTED IN PART AND DENIED IN PART. The case will not be dismissed

at this time, but the following sanctions are imposed on Marcum:

(1) Marcum’s damages are limited to lost wages along with attorney’s

fees;

(2) Marcum’s witnesses are limited to only Ted Bates, Cherri Marcum,

and April Kemp; 

(3) Marcum’s lost wages are established at $760 per week; 

(4) Marcum must pay of one-half of the attorney’s fees previously

imposed within 30 days on this order; 

(5) discovery is stayed until Marcum complies with this Order; and 

(6) Marcum and his counsel must pay Defendants’ fees and costs

associated with bringing Defendants’ Motion to Dismiss or, in

the Alterative, to Enforce (DE #26). 

Defendants’ request for leave to amend their previously filed fee

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petition (DE #39) to include the fees and costs incurred in responding

to Plaintiff’s objection is GRANTED. 

DATED: December 6, 2013 /s/RUDY LOZANO, Judge

United States District Court

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