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

When pro se Plaintiff failed to appear for a show-cause hearing and a hearing on the

pending motions (see DE 201) on May 10, 2018, the Court set the matters over to May 24, 2018,

at 2:00 p.m. (DE 210). This was Plaintiff’s second failure to appear, as he did not appear for a

hearing on the pending motions on May 3, 2018. (DE 206). 

On May 10, 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 24, 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 and May 10th hearings. (AR 211). Plaintiff was advised in the Notice that if he

failed to appear at the May 24th hearing, additional sanctions may issue, up to and including

dismissal of his suit. (AR 211). The Notice also directed Defendants’ counsel to notify Plaintiff

of the May 24, 2018, hearing by U.S. Mail and email. (DE 211 at 3). 

On May 11, 2018, Plaintiff filed a letter asking the Clerk to resend to his address of record

any returned mail, stating that he had experienced “a recent issue with [his] mail.” (DE 212). 

Since then, three more mailings to Plaintiff from the Clerk’s office have been returned: (1) the

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Court’s Order dated April 4, 2018 (DE 198; DE 214); (2) the Notice and Order dated April 17,

2018 (DE 201; DE 213); and (3) the Order dated April 27, 2018 (DE 203; DE 215). 

At the hearing on May 24, 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 sent to Plaintiff via U.S. Mail a copy

of the Notice and Order setting the hearing, and that the mailing had not been returned. 

Defendants’ counsel also sent at least five emails to Plaintiff notifying him of the hearing, and the

emails did not bounce back; Plaintiff, however, did not reply to any of the emails. Defendants’

counsel have had no recent contact with Plaintiff. 

The Court sets this matter over for a show-cause hearing and a hearing on the pending

motions (see DE 201) on July 24, 2018, at 2:00 p.m. (DE 216). Discovery and discovery-related

deadlines are STAYED pending the hearing. 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, May

10th, and May 24th hearings. Plaintiff is ADVISED that if he fails to appear at the hearing on

July 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, via certified mail, which will constitute

notice of the July 24, 2018, hearing, to Plaintiff at his address of record. The Court DIRECTS

Defendants’ counsel to also notify Plaintiff of the July 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 24th day of May 2018.

/s/ Susan Collins 

Susan Collins

United States Magistrate Judge

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