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Alerding Castor Hewitt LLP v. Fletcher

United States District Court, S.D. Indiana, Indianapolis Division

April 18, 2019

ALERDING CASTOR HEWITT LLP, Plaintiff,
v.
PAUL FLETCHER, CAROLE WOCKNER, Defendants. CAROLE WOCKNER, PAUL FLETCHER, Counter Claimants,
v.
ALERDING CASTOR HEWITT LLP, Counter Defendant. WAYNE GOLOMB, GRACEIA GOLOMB, Miscellaneous.

          ENTRY ON OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDERS

          James Patrick Hanlon United States District Judge

         Before the Court are objections to orders issued by the Magistrate Judge. Non-parties, Wayne R. Golomb and Graceia Golomb, object to the Magistrate Judge's Order denying their motion for fees and expenses, dkt. [157]. Defendants object to the Magistrate Judge's Order denying their motion for a court-sourced expert witness, dkt. [158], and the Order denying their motion for leave to file a tardy and oversized response to Alerding Castor's motion for partial summary judgment, dkt. [171]. For the reasons below, the Court OVERRULES all three objections.

         I. Legal Standard

         The objecting party bears the burden of showing that the Magistrate Judge's order should be set aside or modified. See Crawford v. Prof'l Transp., Inc., 2015 WL 5123871, at *4 (S.D. Ind. Sept. 1, 2015). A court will sustain an objection and set aside or modify a magistrate judge's order only if it is “clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). An order is clearly erroneous “only if the district court is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Pain Ctr. of SE Ind., LLC v. Origin Healthcare Sols., LLC, 2014 WL 6674757, at *2 (S.D. Ind. Nov. 25, 2014).

         The standard of review is deferential. To find a decision clearly erroneous, it is not enough for a reviewing court to “have doubts about its wisdom or think [it] would have reached a different result.” Parts & Elec. Motors, Inc. v. Sterling Elec. Co., 866 F.2d 228, 233 (7th Cir. 1988). It must be “dead wrong, ” striking the reviewing court as “wrong with the force of a five-week-old, unrefrigerated dead fish.” Id.

         II. Discussion

         A. The Golombs' objection to the Magistrate Judge's December 10, 2018 Order

         On December 5, 2017, the Magistrate Judge granted the Golombs' motion to quash Defendants' subpoena for their financial records and issued a protective order under Federal Rule of Civil Procedure 26(c). Dkt. 87. The Magistrate Judge found that the Golombs were “entitled to reasonable fees and expenses related to Defendants' subpoena” and gave the Golombs leave to file a “brief to show their expenses.” Id. at 7. Defendants objected to the Magistrate Judge's Order, dkt. 103, and on March 20, 2018, District Judge Richard L. Young found “no error in issuing the sanction of attorney's fees against Defendants.” Dkt. 110 at 2.

         On December 10, 2018, the Magistrate Judge denied the Golombs' request for fees because they had not satisfied the meet and confer requirement of Federal Rule of Civil Procedure 37 prior to filing their motion to quash. Dkt. 150. The Golombs objected, arguing they were not required to meet and confer under Local Rule 31-1(c) and even if they were required to meet and confer, they fulfilled any such duty by sending a letter to Defendants. The Golombs further argue that the Magistrate Judge had already decided that they were entitled to attorney's fees and expenses.

         Rule 37(a) provides that if a protective order is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed.R.Civ.P. 37(a). But the Court “must not order this payment if the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.” Fed.R.Civ.P. 37(a)(5)(A)(i).

         When the Magistrate Judge granted the Golumbs' motion, the parties had not yet raised nor had the Magistrate Judge considered whether the Golombs had satisfied the meet and confer requirement. Dkt. 87. The Magistrate Judge issued his December 2018 Order after briefing from the parties on the meet and confer issue. Nothing about the Magistrate Judge's December 2017 Order precluded him from later determining that that fees should not be awarded under Fed.R.Civ.P. 37(a)(5)(A)(i).

         The Golombs also contend that they were not required to satisfy the meet and confer requirement of Federal Rule of Civil Procedure 37 because the Local Rules exempt pro se litigants from such requirement: “[d]iscovery disputes involving pro se parties are not subject to [Local Rule] 37-1.” Federal Rule of Civil Procedure 37, however, does not have an exemption for pro so litigants and the federal rules control when there is inconsistency between the Federal Rules of Civil Procedure and the Local Rules. SeeFed. R. Civ. P. 83(1)(a) (Local Rules “must be consistent with-but not duplicate-federal statutes and rules . . . .”); Rand v. Monsanto Co., 926 F.2d 596, 600 (7th Cir. 1991) (“Local rules are valid only to the extent they are consistent with the national rules, Fed.R.Civ.P. 83…”), overruled on other grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015).

         The Golombs contend that they satisfied the good faith meet and confer requirement of Federal Rule of Civil Procedure 37 when they sent a letter to Defendants before filing their motion to quash. In support of their position, the Golombs rely on Redmond v. Leatherwood, 2009 WL 4066610, at *2 (E.D. Wis. Nov. 20, 2009) and the argument that the cases cited by the Magistrate Judge did not involve pro se litigants or non-parties.

         Neither argument carries the day. The Federal Rules of Civil Procedure trump Local Rules, and the Magistrate Judge acted well within his discretion in finding that sending the letter did not satisfy the meet and confer requirement. SeeAregood v. Givaudan Flavors Corp., No. 1:14-cv-00274-SEB-TAB, 2016 WL 1718289, at *6 (S.D. Ind. Apr. 29, 2016) (“Conferring is not the same as communicating… To confer, the parties must actually consult with one another.”); Slabaugh v. LG Elecs. USA, Inc., No. 1:12-cv-01020-RLY-MJD, 2015 WL 500849, at *3 (S.D. Ind. Feb. 3, 2015) (“[T]he meet and confer requirement of Local Rule 37-1 requires more than a mere exchange of letters or e-mails…”); Loparex, LLC v. MPI ...


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