Archie v. Frank Cockrell Body Shop, Inc.
Order DENYING 22 Appeal of Magistrate Judge Order & AFFIRMING Magistrate Judge's 21 Order on Dft's 18 Motion to Compel as set out. Signed by Judge Callie V. S. Granade on 9/17/2012. (tot) (Main Document 23 replaced on 9/18/2012) (tot).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK COCKRELL BODY SHOP,
CIVIL ACTION NO. 12-0046-CG-M
This matter is before the Court on the Plaintiff’s appeal, (Doc. 22), of the
Magistrate Judge’s order, (Doc. 21), denying the Defendant’s motion to compel
discovery responses to its interrogatories, (Doc. 18). Upon consideration of the
record, and for the following reasons, this court AFFIRMS the Magistrate Judge’s
Standard of Review of Magistrate Judge’s Discovery Ruling
A Magistrate Judge’s discovery ruling is a final decision that is not subject to
de novo review, as is a Report and Recommendation. See Merritt v. Int’l Bhd. of
Boilermakers, 649 F.2d 1013, 1017 (5th Cir. 1981).1 Instead, such decisions are
subject to a “clearly erroneous or contrary to law” standard—one which is
All cases decided by the former Fifth Circuit before October 1, 1981, are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
“extremely deferential.” See 28 U.S.C. § 636(b)(1)(A) (2006); accord Fed. R. Civ. P.
72(a); SD ALA LR 72.3(c). “Relief is appropriate under the clearly erroneous prong
of the test only if the district court finds that the Magistrate Judge abused his
discretion or, if after viewing the record as a whole, the Court is left with a definite
and firm conviction that a mistake has been made.” Pigott v. Sanibel Dev., LLC,
2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008) (internal quotation marks
omitted). A ruling is “contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Id.
Plaintiff raises two issues on appeal. First, he contends that Magistrate
Judge Milling’s decision to amend the Rule 16(b) scheduling order by increasing the
limit on the number of interrogatories from 30 to 45 was both clearly erroneous and
contrary to law. (Doc. 22 at 2-4.) Second, Plaintiff asserts that Federal Rule of Civil
Procedure 37(a)(5)(B) required Magistrate Judge Milling to award Plaintiff his
reasonable expenses, including attorneys fees, incurred in responding to
Defendant’s motion to compel. (Id. at 4.) The Court will briefly address each issue
As to the first issue, Plaintiff’s argument rests on the faulty premise that a
Magistrate Judge cannot amend a scheduling order sua sponte. Plaintiff cites no
law in support of that proposition. Though it has no obligation to take on Plaintiff’s
burden to bolster his arguments, see Vision Bank v. Merritt, 2010 WL 5474161, at
*4 (S.D. Ala. Dec. 8, 2010) (citing Fed. Ins. Co. v. Cnty. of Westchester, 921 F. Supp.
1136, 1139 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel’s
responsibility to explain why these points have legal merit; the Court does not serve
as counsel’s law clerk.”)), the Court has searched in vain for any authority within
the Eleventh Circuit that might deprive a magistrate judge from amending a
scheduling order that he entered. The Federal Rules state only that such an order
may be modified “for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). Without further limitation, the Local Rules of this Court authorize
magistrate judges to modify scheduling orders in all actions referred to them. SD
ALA LR 16.1(a). Whereas Plaintiff has failed to show that the Magistrate Judge
misapplied any relevant statute, case law, or procedural rule, Magistrate Judge
Milling’s sua sponte amendment of his scheduling order was not contrary to law.
Additionally, the Magistrate Judge did not abuse his discretion by
authorizing both parties to serve on each other 45, rather than 30, interrogatories
without first requiring the parties to make “particularized showings.” (Doc. 22 at 3
n.1.) As the United States Supreme Court has acknowledged, “[o]n its own motion,
the trial court ‘may alter the limits in the Federal Rules on the number
of . . . interrogatories.’” Crawford-El v. Britton, 523 U.S. 574, 598-99 (1998) (quoting
Fed. R. Civ. P. 26(b)(2)) (internal brackets omitted). Again, Plaintiff has not cited
any authority to support his implied argument that once the court exercises its
discretion to set the number of interrogatories allowed that it may not revisit that
decision in the absence of a request by the parties. Furthermore, it appears that, by
selectively answering some of Defendant’s interrogatories,2 Plaintiff has waived any
objection he might have had to the number propounded. See 8B Charles Alan
Wright et al., Federal Practice & Procedure, Civil § 2168.1 n.20 (3d ed. 2010)
(“When a party believes that another party has asked too many interrogatories, it
should object to all the interrogatories or file a motion for a protective order. It may
not answer some and object to the ones to which it does not want to respond.”).
Finally, the Court finds no error in the Magistrate Judge’s decision to deny
Plaintiff’s request for fees. Under Rule 37(a)(5)(B), if the court denies a motion to
compel discovery, it must order the movant to pay reasonable fees to the party that
successfully opposed the motion, unless “the motion was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B).
“Substantially justified means that reasonable people could differ as to the
appropriateness of the contested action.” Maddow v. Procter & Gamble Co., 107
F.3d 846, 853 (11th Cir. 1997) (citation omitted); see also Fed. R. Civ. P. 37 advisory
Though the parties have not put before the Court a complete copy of Plaintiff’s
interrogatory responses, Defendant reproduced certain of those responses in the
body of its motion to compel. (Doc. 18 at 2-8.) Even on that limited record, the
Court can determine that Plaintiff took it upon himself to pick and choose the
interrogatories to which he would respond. For example, in response to Discovery
Requests 3, 7, and 9, Plaintiff objected that the request violated the limitation set
forth in the Magistrate Judge’s scheduling order but nonetheless provided some of
the information demanded. In response to Discovery Requests 8, 16, and 24,
Plaintiff simply rested on his objection. In response to Discovery Requests 1, 2, 12,
and 18, Plaintiff stated no objection whatsoever and provided some, but not all, of
the information Defendant sought. A litigant may not treat a set of interrogatories
like an a la carte menu and determine for itself which requests to honor and which
to ignore. See 7 James Wm. Moore et al., Moore’s Federal Practice, § 33.30 (3d
ed. 2003) (noting that it “would clearly be improper” for a responding party to
“select the interrogatories of its choosing to answer”).
committee’s note (substantial justification under Rule 37 is satisfied where there is
a genuine issue concerning compliance with discovery obligations). In denying both
parties’ requests for fees, the Magistrate Judge did not indicate whether he believed
Defendant’s motion to be substantially justified nor did he identify the
circumstances that would make a fee award unjust. However, given the deferential
standard of review that this Court must apply to the Magistrate Judge’s decision
and the fact that Magistrate Judge Milling concluded that all of Defendant’s
interrogatories were relevant to the subject matter involved in this action,” (Doc. 21
at 1), Plaintiff is not entitled to any relief from the order from which he appeals.
As set forth above, Plaintiff’s Appeal of the Magistrate Judge’s order on
Defendant’s Motion to Compel (Doc. 22) is hereby DENIED, and the Magistrate
Judge’s Order is AFFIRMED.
DONE and ORDERED this 17th day of September, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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