United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON OBJECTIONS TO THE MAGISTRATE JUDGE'S
Patrick Hanlon United States District Judge
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. . Defendants object
to the Magistrate Judge's Order denying their motion for
a court-sourced expert witness, dkt. , 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. . For the reasons below, the Court
OVERRULES all three objections.
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).
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.”
The Golombs' objection to the Magistrate Judge's
December 10, 2018 Order
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.
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.
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.
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
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.
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
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 ...