ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE PATTI'S 2/28/19 ORDER GRANTING AS UNOPPOSED DEFENDANT'S MOTION TO COMPEL DISCOVERY AGAINST PLAINTIFF [#38] AND DENYING DEFENDANT'S REQUEST FOR ADDITIONAL ATTORNEY FEES

I. INTRODUCTION

*1 Before the Court is Plaintiff's Motion for Reconsideration of Magistrate Judge Patti's February 28, 2019 Order Granting as Unopposed Defendant's Motion to Compel Discovery Against Plaintiff. Dkt. No. 38. Plaintiff moves this Court to reverse Magistrate Judge Patti's decision granting attorney fees, costs, and expenses associated with Defendant's motion to compel discovery against Plaintiff. For the reasons discussed below, this Court will overrule Plaintiff's objections.

II. FACTUAL BACKGROUND

Plaintiff Markus Irving filed his complaint against Defendant Anthony Palmer on May 22, 2018 alleging defamation and other claims. Dkt. No. 1. On January 29, 2019 Defendant filed a motion to compel discovery. Dkt. No. 27. Defendant's motion to compel stated that Defendant served Plaintiff with his First Request for Production of Documents on December 23, 2018. Id. at pg. 1 (Pg. ID 258). Over thirty days elapsed and Plaintiff never served answers or objections to Defendant's Request. Id. at pg. 2 (Pg. ID 259). Plaintiff did not file a response to Defendant's motion to compel. Accordingly, on February 28, 2019, Magistrate Judge Patti entered an order granting Defendant's motion to compel as unopposed. Dkt. No. 33.

Plaintiff filed the present Motion for Reconsideration on March 6, 2019. Dkt. No. 38. Plaintiff's Motion states that Plaintiff's lead counsel, Stephen J. Chacko, was battling medical ailments in relation to his ear and head which required surgery prior to Defendant filing its motion to compel. Dkt. No. 38, pg. 7 (Pg. ID 322). Further, Mr. Chacko was on an unplanned medical leave before Defendant filed its motion to compel on January 29, 2019 and for the entire month of February. Id. He returned to work on March 4, 2019. Id. Therefore, Mr. Chacko was not aware that Defendant had filed a motion to compel. Id. Mr. Todd R. Perkins is also listed as an attorney in this matter. Id. However, Plaintiff states that Mr. Perkins' name is listed in the caption as a matter of course. Id. Therefore, Plaintiff's counsel Mr. Chacko “attempted to take every measure into account prior to his medical leave in order to ensure proper compliance with all discovery deadlines, court deadlines, and court orders.” Id. Defendant filed a response opposing the Motion for Reconsideration on March 20, 2019. Dkt. No. 42. Defendant's response requests this Court to award him additional attorney fees in the amount of $900.00 to cover the costs of submitting a response to Plaintiff's Motion for Reconsideration. Id. at pg. 3 (Pg. ID 354).

III. LEGAL STANDARD

The review of a Magistrate Judge's order resolving a non-dispositive matter is governed by the “clearly erroneous or contrary to law” standard of review. Fed. R. Civ. P. 72(a). The United States Supreme Court has held that “a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This standard does not permit the reviewing court to reverse a magistrate judge's finding merely because it would have decided the matter differently. Sedgewick Ins. v. F.A.B.E. Custom Downstream Sys., Inc., 47 F. Supp. 3d 536, 538 (E.D. Mich. 2014).

*2 The clearly erroneous standard applies only to the magistrate judge's factual findings; his legal conclusions are reviewed under the plenary contrary to law standard. Id. (internal quotation marks omitted). The Court's review under the “contrary to law” standard requires the exercise of independent judgment in determining whether the magistrate judge's legal conclusions “contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992).

IV. DISCUSSION

Plaintiff asserts that this Court should sustain its objections pursuant to Fed. R. Civ. P. 60(b)(1); 60(b)(6); and 37(a)(5)(A)(ii) and (iii). Dkt. No. 38, pgs. 8–11 (Pg. ID 323–26). Fed. R. Civ. P. 60(b)(1) and (b)(6) state:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect ...

(6) any other reason that justifies relief.

Fed. R. Civ. P. 37(a)(5)(A)(ii) and (iii) state:

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—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. But the court must not order this payment if ...

(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

Here, Plaintiff's attorney Mr. Chacko asserts that he went on an unexpected medical leave after minor complications from surgery. He was not aware that Defendant had filed a motion to compel. However, Plaintiff fails to assert why his attorney failed to respond or object to Defendant's First Request for Production of Documents, served to Plaintiff on December 23, 2018. Pursuant to Fed. R. Civ. P. 34(b)(2)(A), Plaintiff was required to respond or object within 30 days after being served. Plaintiff's counsel was thus on notice on December 23, 2018 that there was discovery that he was required to respond to. Counsel's failure to respond to the discovery request required Defendant to file its motion to compel.

The Court empathizes with Mr. Chacko's inability to work due to health complications. However, Mr. Chacko maintained the responsibility to represent his client to the best of his ability. Plaintiff's Motion fails to explain his counsel's failure to respond to Defendant's December 23, 2018 discovery request. If Mr. Chacko could not work on the case due to his health, Plaintiff's co-counsel-of-record, Mr. Perkins, should have taken over the file in Mr. Chacko's absence. For these reasons, the Court will deny Plaintiff's Motion.

V. CONCLUSION

For the reasons discussed herein, the Court will overrule Plaintiff's Objections to Magistrate Judge Patti's Order Granting the Unopposed Defendant's Motion to Compel and Sanctions [#38].The Court will also deny Defendant's request for additional attorney fees for filing a response to Plaintiff's Motion for Reconsideration.

SO ORDERED.

Irving v. Palmer

Citation: 2019 WL 13198853 (E.D. Mich. 2019)

Summary: Defendant served Plaintiff with a First Request for Production of Documents on December 23, 2018, which included ESI. The Court did not make any specific rulings regarding ESI, but it is important to note that ESI is subject to the same rules and regulations as other forms of discovery, and parties must comply with these rules when responding to requests for ESI.

Court: United States District Court, E.D. Michigan, Southern Division

Date decided: August 27, 2019

Judge: Drain, Gershwin A.

MARKUS IRVING, Plaintiff, v. ANTHONY PALMER, Defendant Case No. 18-cv-11617 United States District Court, E.D. Michigan, Southern Division Filed August 27, 2019 Drain, Gershwin A., United States District Judge ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE PATTI'S 2/28/19 ORDER GRANTING AS UNOPPOSED DEFENDANT'S MOTION TO COMPEL DISCOVERY AGAINST PLAINTIFF [#38] AND DENYING DEFENDANT'S REQUEST FOR ADDITIONAL ATTORNEY FEES I. INTRODUCTION *1 Before the Court is Plaintiff's Motion for Reconsideration of Magistrate Judge Patti's February 28, 2019 Order Granting as Unopposed Defendant's Motion to Compel Discovery Against Plaintiff. Dkt. No. 38. Plaintiff moves this Court to reverse Magistrate Judge Patti's decision granting attorney fees, costs, and expenses associated with Defendant's motion to compel discovery against Plaintiff. For the reasons discussed below, this Court will overrule Plaintiff's objections. II. FACTUAL BACKGROUND Plaintiff Markus Irving filed his complaint against Defendant Anthony Palmer on May 22, 2018 alleging defamation and other claims. Dkt. No. 1. On January 29, 2019 Defendant filed a motion to compel discovery. Dkt. No. 27. Defendant's motion to compel stated that Defendant served Plaintiff with his First Request for Production of Documents on December 23, 2018. Id. at pg. 1 (Pg. ID 258). Over thirty days elapsed and Plaintiff never served answers or objections to Defendant's Request. Id. at pg. 2 (Pg. ID 259). Plaintiff did not file a response to Defendant's motion to compel. Accordingly, on February 28, 2019, Magistrate Judge Patti entered an order granting Defendant's motion to compel as unopposed. Dkt. No. 33. Plaintiff filed the present Motion for Reconsideration on March 6, 2019. Dkt. No. 38. Plaintiff's Motion states that Plaintiff's lead counsel, Stephen J. Chacko, was battling medical ailments in relation to his ear and head which required surgery prior to Defendant filing its motion to compel. Dkt. No. 38, pg. 7 (Pg. ID 322). Further, Mr. Chacko was on an unplanned medical leave before Defendant filed its motion to compel on January 29, 2019 and for the entire month of February. Id. He returned to work on March 4, 2019. Id. Therefore, Mr. Chacko was not aware that Defendant had filed a motion to compel. Id. Mr. Todd R. Perkins is also listed as an attorney in this matter. Id. However, Plaintiff states that Mr. Perkins' name is listed in the caption as a matter of course. Id. Therefore, Plaintiff's counsel Mr. Chacko “attempted to take every measure into account prior to his medical leave in order to ensure proper compliance with all discovery deadlines, court deadlines, and court orders.” Id. Defendant filed a response opposing the Motion for Reconsideration on March 20, 2019. Dkt. No. 42. Defendant's response requests this Court to award him additional attorney fees in the amount of $900.00 to cover the costs of submitting a response to Plaintiff's Motion for Reconsideration. Id. at pg. 3 (Pg. ID 354). III. LEGAL STANDARD The review of a Magistrate Judge's order resolving a non-dispositive matter is governed by the “clearly erroneous or contrary to law” standard of review. Fed. R. Civ. P. 72(a). The United States Supreme Court has held that “a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This standard does not permit the reviewing court to reverse a magistrate judge's finding merely because it would have decided the matter differently. Sedgewick Ins. v. F.A.B.E. Custom Downstream Sys., Inc., 47 F. Supp. 3d 536, 538 (E.D. Mich. 2014). *2 The clearly erroneous standard applies only to the magistrate judge's factual findings; his legal conclusions are reviewed under the plenary contrary to law standard. Id. (internal quotation marks omitted). The Court's review under the “contrary to law” standard requires the exercise of independent judgment in determining whether the magistrate judge's legal conclusions “contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992). IV. DISCUSSION Plaintiff asserts that this Court should sustain its objections pursuant to Fed. R. Civ. P. 60(b)(1); 60(b)(6); and 37(a)(5)(A)(ii) and (iii). Dkt. No. 38, pgs. 8–11 (Pg. ID 323–26). Fed. R. Civ. P. 60(b)(1) and (b)(6) state: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... (6) any other reason that justifies relief. Fed. R. Civ. P. 37(a)(5)(A)(ii) and (iii) state: (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—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. But the court must not order this payment if ... (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Here, Plaintiff's attorney Mr. Chacko asserts that he went on an unexpected medical leave after minor complications from surgery. He was not aware that Defendant had filed a motion to compel. However, Plaintiff fails to assert why his attorney failed to respond or object to Defendant's First Request for Production of Documents, served to Plaintiff on December 23, 2018. Pursuant to Fed. R. Civ. P. 34(b)(2)(A), Plaintiff was required to respond or object within 30 days after being served. Plaintiff's counsel was thus on notice on December 23, 2018 that there was discovery that he was required to respond to. Counsel's failure to respond to the discovery request required Defendant to file its motion to compel. The Court empathizes with Mr. Chacko's inability to work due to health complications. However, Mr. Chacko maintained the responsibility to represent his client to the best of his ability. Plaintiff's Motion fails to explain his counsel's failure to respond to Defendant's December 23, 2018 discovery request. If Mr. Chacko could not work on the case due to his health, Plaintiff's co-counsel-of-record, Mr. Perkins, should have taken over the file in Mr. Chacko's absence. For these reasons, the Court will deny Plaintiff's Motion. V. CONCLUSION For the reasons discussed herein, the Court will overrule Plaintiff's Objections to Magistrate Judge Patti's Order Granting the Unopposed Defendant's Motion to Compel and Sanctions [#38].The Court will also deny Defendant's request for additional attorney fees for filing a response to Plaintiff's Motion for Reconsideration. SO ORDERED.