United States District Court, E.D. Virginia, Richmond Division
TIMOTHY J. LEVI, pro se Plaintiff,
TWENTIETH CENTURY FOX FILM, CORP., etal, Defendants.
RODERICK C. YOUNG, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Report and Recommendation
of the Magistrate Judge entered on October 23, 2018 (ECF No.
53) recommending that Plaintiffs case be dismissed for
Plaintiffs failure to prosecute. Plaintiff has filed
Objections. (ECF No. 54.) For the reasons that follow,
Plaintiffs Objections will be OVERRULED, the Report and
Recommendation of the Magistrate Judge (ECF No. 53) will be
ACCEPTED and ADOPTED, and this action will be DISMISSED WITH
Magistrate Judge made the following findings and
On July 9, 2018, the Court ordered the parties in this matter
to schedule a settlement conference with the undersigned, not
later than 30 days before the bench trial scheduled for
November 27, 2018. (ECF No. 49.) Plaintiff Timothy J. Levi
("Plaintiff), proceeding pro se, and Defendant
Robert Walker ("Defendant") communicated their
availability to the Court and selected October 23, 2018, as
their settlement conference date. On September 6, 2018,
Plaintiff completed a form, consenting to the appointment of
counsel for settlement conference purposes only. (ECF No.
51-1.) Pursuant to the Court's Pro Se Pro Bono
Court Settlement Conference Program, the Court appointed
Jonathan Petty of Phelan Petty PLC as counsel for Plaintiff
for the limited purpose of providing advice during the
October 23 settlement conference. (ECF No. 51.)
On September 7, 2018, the undersigned issued an Order
Regarding Procedures for Settlement, which stated that
"the parties shall report to the chambers of [the
undersigned]" on October 23, 2018, at 10:00 a.m. (ECF
No. 50.) On October 23, 2018, Mr. Petty and Defendant
reported to the undersigned's chambers at 10:00 a.m. in
compliance with the Court's Order Regarding Procedures
for Settlement. Plaintiff, without explanation, did not
report to the Court. Accordingly, the undersigned recommends
that the Court DISMISS this case for Plaintiffs failure to
STANDARD OF REVIEW
magistrate [judge] makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with
this court." Estrada v. Witkowski, 816 F.Supp.
408, 410 (D.S.C. 1993) (citing Mathews v. Weber, 423
U.S. 261, 270-71 (1976)). This Court "shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made." 28 U.S.C. § 636(b)(1).
"The filing of objections to a magistrate's report
enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute." Thomas v. Am, 474 U.S.
140, 147 (1985). "[W]hen a party makes general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations," de novo review is
unnecessary. Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982) (citations omitted).
makes two principal objections to the Report and
Recommendation. His first objection is that he was unable to
attend the settlement conference scheduled for October 23,
2018 due to a conflicting court date in the U.S. District
Court for the Central District of California, Los Angeles
Division. (Objs. ¶¶ 2, 6, 11.) On July 9, 2018, the
Magistrate Judge ordered the parties to appear for a
settlement conference for this action on October 23, 2018.
(ECF No. 53 at 1.) After the entry of the July 9, 2018 Order,
Plaintiff filed a copyright infringement action (the
"Los Angeles Action") on July 14, 2018 in the
Central District of California, Los Angeles Division, based
upon the same set of underlying facts as this action. (Objs.
¶ 2.) In August 2018, Senior United States District
Judge Conseulo B. Marshall, the presiding judge over
Plaintiffs Los Angeles Action, scheduled a motions hearing
for September 18, 2018 (the "Los Angeles Hearing").
(Id. ¶¶ 4-5.) On September 10, 2018, Judge
Marshall continued the Los Angeles Hearing to October 23,
2018, the same date as the previously scheduled settlement
conference. (Id. ¶ 6.)
September 20, 2018, Plaintiff communicated with his pro bono
attorney and apprised him of his conflicting court date.
(Id. ¶ 8.) Plaintiffs pro bono attorney
cautioned him that he was required to personally attend the
settlement conference. (Id. ¶ 8.) Plaintiff
attempted to retain counsel to attend the Los Angeles Hearing
but Plaintiff did not have the necessary funds to retain an
attorney. (Id. ¶ 9.) After "ponderpng] his
options for several minutes," Plaintiff concluded that
since this action "was headed to trial anyway,
attend[ing] the Los Angeles hearing was the more logical
choice." (Id. ¶ 11.)
second objection is that his failure to contact the Court in
advance of the settlement conference is justified.
(Id. ¶ 11.) Plaintiff asserts that he was
unable to contact the Court due to both his lack of trust in
his pro bono attorney, as well as the fact that his efforts
to secure his safety for his trip to Los Angeles for the Los
Angeles Hearing prevented him from using electronic devices
to inform anyone of his travel plans. (Id.)
Plaintiff alleges that in the months leading to the
settlement conference, he had been the target of illegal
wiretapping and had been followed by suspicious persons and
vehicles throughout Los Angeles.(Id.) "Fearing
for his safety" for his trip to Los Angeles for the Los
Angeles Hearing, Plaintiff turned off his electronic devices
and avoided "letting ...