UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

RICHARD J. HERBER, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:16-cv-00310-PPS-SLC

)

FORT WAYNE CITY COUNCIL, et al., )

 )

Defendants. )

NOTICE AND ORDER

On April 17, 2018, the Court set various pending motions for an in-person hearing on May

3, 2018, at 3:00 p.m. (AR 201). Counsel to Defendant Wells Fargo Bank NA (“Wells Fargo”)

appeared telephonically, and counsel to the other Defendants appeared in person. (AR 206). Pro

se Plaintiff, however, failed to appear. (DE 206). The Court waited to commence the hearing

until 3:16 p.m., and Plaintiff still had not appeared. The Court then set the matter over for a showcause hearing and a hearing on the pending motions (see DE 201) on May 10, 2018, at 2:00 p.m. 

(DE 206). 

On May 4, 2018, the Court sent a Notice and Order to Plaintiff via U.S. Mail at his address

of record, notifying him of the show-cause hearing and hearing on the pending motions set for

May 10, 2018, at 2:00 p.m. (AR 207). The Notice and Order directed Plaintiff to appear in

person at the hearing and to show cause why he should not be sanctioned for his failure to appear

at the May 3rd hearing. (AR 207). Plaintiff was further advised in the Notice that if he failed to

appear at the May 10th hearing, additional sanctions may issue, up to and including dismissal of

his suit. (AR 207). 

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On May 10, 2018, prior to the afternoon hearing, the Notice and Order sent to Plaintiff was

returned to the Court by the U.S. Postal Service as “unclaimed” and “unable to forward.” (AR

209).

At the hearing on May 10, 2018, counsel to Defendants appeared in person, with the

exception of counsel to Wells Fargo, who appeared telephonically. Plaintiff, however, again

failed to appear. Defendants’ counsel reported that they too had a mailing returned from

Plaintiff’s address. After further investigation through the U.S. Postal Service, Defendants’

counsel learned that Plaintiff’s mailbox had been full to where no additional mail could fit in the

box, and thus, the postal carrier returned the mail to the postal office, notifying Plaintiff

accordingly. Defendants’ counsel reported that they had learned on the morning of the May 10th

hearing that Plaintiff had appeared at the postal office on May 9, 2018, and retrieved his mail. 

Counsel to Wells Fargo added that he had emailed Plaintiff a copy of the Notice and Order (DE

207) on the morning of May 10, in an attempt to notify Plaintiff of the 2:00 p.m. hearing. 

Nevertheless, Plaintiff failed to appear at the hearing. 

This matter is set over for a show-cause hearing and a hearing on the pending motions (see

DE 201) on May 24, 2018, at 2:00 p.m. (DE 210). Counsel for Wells Fargo may appear

telephonically; Plaintiff and counsel to the other Defendants are to appear in person. At that

hearing, Plaintiff is to SHOW CAUSE why he should not be sanctioned for his failure to appear at

the May 3rd and May 10th hearings.

Plaintiff is ADVISED that if he fails to appear at the hearing on May 24, 2018, additional

sanctions may issue, up to and including dismissal of his lawsuit. The Court DIRECTS the Clerk

to send this Notice and Order, which will constitute notice of the May 24, 2018, hearing, to

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Plaintiff at his address of record. The Court DIRECTS Defendants’ counsel to also notify

Plaintiff of the May 24, 2018, hearing by sending a copy of this Notice and Order to Plaintiff via

email and U.S. mail, or by other alternate means.

SO ORDERED. 

Entered this 10th day of May 2018.

/s/Susan Collins 

Susan Collins

United States Magistrate Judge

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