Livingstone v. DeVry Univ., Inc.

MICHAEL O. LIVINGSTONE, Plaintiff, v. DEVRY UNIVERSITY, INC., et al., Defendants.

No. 20-cv-05567

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

June 8, 2021

Judge Andrea R. Wood

ORDER

For the reasons set forth in the Statement below, Defendants' motion to enforce the settlement agreement [68] is granted and Plaintiff's motions to quash the settlement [72], [83] are denied. The Court overrules Plaintiff's objections to the Report and Recommendation [96], adopts the Report and Recommendation in full, and finds that the parties reached a binding oral settlement agreement that was subsequently memorialized in writing as set forth in the Confidential Settlement Agreement and Release at Docket No. 68-4. Consistent with the terms of that agreement, this case is dismissed with prejudice. The Clerk is directed to enter Judgment in favor of Defendants. The Court also grants Defendants' motion to strike Plaintiffs' objections and motions for review [109] and denies Plaintiff's motion to vacate order RE Math 533 class [85], his motion to correct the Report and Recommendation [98], and his motion for extension of time and to exceed page limits [100]. Plaintiff's motion for expedited extension of time and notice of expansion of Math 533 course-related motions [99] is granted to the extend he seeks an extension of the time to file his notice of appeal of the Court's denial of his motion for a preliminary injunction, and otherwise denied. Plaintiff's notice of appeal filed March 24, 2021 is deemed timely filed. Plaintiff's other pending motions [23], [48], [92] are denied as moot. Defendants' motion for a briefing schedule on their motion for fees and costs [70] is granted and Plaintiff's motions to quash that motion and impose sanctions [72] and to stay settlement proceedings [97] are denied. Defendants may file a motion seeking attorneys' fees and costs by June 22, 2021; Plaintiff's response shall be filed by July 13, 2021; and Defendants' reply shall be filed by July 27, 2021. The motion for attorneys' fees and costs shall address the propriety of an award of attorneys and costs; if the motion is granted, the Court will direct the procedure by which the amount of the award will be determined. Finally, Defendants' motion to reassign a related case [112] is denied.

STATEMENT

Plaintiff Michael Livingstone is a Master of Business Administration candidate at Defendant DeVry University ("DeVry"). Livingstone's 39-count amended complaint asserts claims against 26 Defendants, including DeVry, which according to the amended complaint is an Illinois-based, for-profit educational institution. (Am. Compl., Dkt. No. 10.) Livingstone alleges, among other things, that Defendants violated his civil rights as a DeVry student.

I. Enforcement of Settlement Agreement

On October 16, 2020, the Court referred this case to the Magistrate Judge for a settlement conference. (See Dkt. No. 27.) The parties exchanged settlement positions. They then participated in a day-long settlement conference with the Magistrate Judge on November 20, 2020. At the end of the conference, the parties reported that they had reached a settlement. The material terms of the settlement were recited on the record; the parties reached various agreements, including a payment from Defendants to Livingstone, an agreement that Livingstone would be allowed and required to retake the Math 533 course to graduate from DeVry unless DeVry determined otherwise, and a release of Livingstone's claims against all Defendants. (Nov. 20, 2020 Settlement Conf. Tr. 3-4, Dkt. No. 58.) On the record, Livingstone confirmed that he had heard and understood the terms, that there was nothing he wanted to change, that he understood he could not change his mind after accepting the terms, that he was competent to represent himself and had not been pressured into settling, and that he was not on any medications that affected his judgment. (Id. at 5-9.) The parties agreed that they would memorialize their settlement in writing. (Id. at 10.) But the Magistrate Judge made clear that even if they did not reach a written settlement agreement, the oral terms of the contract would control. (Id.)

Following the settlement conference, Livingstone asked Defendants to adjust the terms of their settlement by making an additional payment to cover his tax liability and by allowing him to pursue reimbursement of his filing fee and process server costs from Defendants. Defendants declined those requests. Then, on November 24, 2020, Livingstone signed the written settlement agreement prepared by Defendants and emailed it to Defendants' counsel, along with a request to expedite payment of the settlement amount. Six days later, Livingstone emailed a revised settlement agreement to Defendants' counsel, requesting four changes and asking Defendants to sign the revised version. Defendants instead signed the first version. They subsequently mailed settlement checks to Livingstone, which Livingstone cashed.

The parties' written settlement agreement required Livingstone to dismiss the case with prejudice two weeks after he signed the agreement. But on December 10, 2020, Livingstone filed a "notice" that no binding settlement had been reached, asserting that he had repudiated his signature before Defendants signed it and raising other objections to the settlement agreement. (Dkt. No. 55.) The parties filed cross-motions to enforce and quash the settlement. (Dkt. Nos. 68, 83.) The Court referred these motions to the Magistrate Judge.

A. Magistrate Judge's Report and Recommendation and Plaintiff's Objections

As reflected in her Report and Recommendation, the Magistrate Judge concluded that the parties had reached a binding oral settlement agreement that was subsequently memorialized in writing. She also found that Livingstone failed to repudiate the agreement because he signed the agreement and cashed the settlement check. The Magistrate Judge determined that Livingstone's email of November 30, 2020, which attempted to renegotiate settlement terms, used equivocallanguage and did not constitute a repudiation of his November 24, 2020 signed agreement. The Magistrate Judge rejected Livingstone's other arguments as meritless. Despite the Magistrate Judge's warning that failure to timely object to the Report and Recommendation would waive any objections, Livingstone did not file his objections within fourteen days.

If Defendants' motion is granted, this case will be dismissed with prejudice. That means that if either party properly objects to any portion of the Report and Recommendation, the Court must review those portions de novo. Fed. R. Civ. P. 72(b). Otherwise, the Court reviews the Report and Recommendation for clear error. Fed. R. Civ. P. 72(a); see Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Here, the Court will review the report for clear error because Livingstone failed to properly object to it. Livingstone filed what he described as his "preliminary" objections to the Report and Recommendation on March 16, 2021, eighteen days after it was issued and four days after the deadline to object had passed. (Dkt. No. 99); see also Fed. R. Civ. P. 72(b)(2) (setting a fourteen-day deadline for any objections to a magistrate judge's dispositive report). He then filed further objections on March 26, 2021 and March 29, 2021—twenty-eight days and thirty-one days, respectively, after the Report and Recommendation was filed. (Dkt. Nos. 106, 107.)

The Magistrate Judge, in her Report and Recommendation, warned Livingstone of the consequences of failing to file timely objections. Further, his "preliminary" objections were seventeen pages long (a substantial portion of which was single-spaced), his subsequent objections were 101 pages long, and his final amended objections were 147 pages long. These filings, without cause, dramatically exceeded the fifteen-page limit for objections to a report and recommendation. N.D. Ill. L.R. 7.1. While Livingstone moved for an extension of time and to exceed page limits, this motion was also filed after the fourteen-day deadline. (Dkt. No. 100.)

The Court finds that Livingstone has failed to timely object to the Report and Recommendation and has therefore waived his arguments against the Magistrate Judge's recommendation. "[P]ro se litigants are not entitled to a general dispensation from the rules of procedure or court imposed deadlines." Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Generally, pro se litigants "must be afforded leniency . . . on procedural matters." Otis v. Demarasse, 886 F.3d 639, 644 (7th Cir. 2018) (internal quotation marks omitted). But here, the Court finds it appropriate to hold Livingstone to the deadline imposed by the Magistrate Judge and the Federal Rules of Civil Procedure. Livingstone moved to "correct" the Report and Recommendation just three days after it had been issued. (Dkt. No. 98.) He clearly had notice of the deadline and an opportunity to meet it. Throughout this litigation, as the Magistrate Judge noted, Livingstone has prepared extensive written filings. Here, Livingstone chose to miss the objection deadline to prepare a longer submission of more than one hundred pages. The Court is not obligated to accept late submissions that are several times the maximum permitted length.

The Court has reviewed the Magistrate Judge's Report and Recommendation and adopts it in full, finding no clear error. Indeed, even if Livingstone's objections had been timely filed, the Court would reach the same result for the following reasons. First, the transcript of the parties' settlement conference shows that Livingstone knowingly and voluntarily entered into the settlement agreement that Defendants seek to enforce. Livingstone further assented to the written settlement agreement—that is, the agreement he signed and emailed to Defendants on November24, 2020—by cashing the settlement check he received and declining to return...