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Levi v. Twentieth Century Fox Film Corp.

United States District Court, E.D. Virginia, Richmond Division

November 8, 2018

TIMOTHY J. LEVI, pro se Plaintiff,
v.
TWENTIETH CENTURY FOX FILM, CORP., etal, Defendants.

          MEMORANDUM OPINION

          RODERICK C. YOUNG, UNITED STATES MAGISTRATE JUDGE

         This 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 PREJUDICE.

         I. BACKGROUND

         The Magistrate Judge made the following findings and recommendations:

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 prosecute.

(R&R 1-2.)

         II. STANDARD OF REVIEW

         "The 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).

         III. OBJECTIONS

         Plaintiff 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.)

         On 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."[1] (Id. ¶ 11.)

         Plaintiffs 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.[2](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 ...


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