Gunn et al v. WCA Logistics, LLC et al

Filing 120

ORDER OVERRULING 102 THIRD-PARTY DEFENDANT'S OBJECTIONS TO THE UNITED STATES MAGISTRATE JUDGES ORDER ON MOTION TO COMPEL AND ORDER RE: SANCTIONS. Judge Hegarty's Orders (ECF Nos. 79 & 91 are AFFIRMED and ADOPTED in their entirety, and Third-Party Defendant John E. Breen is sanctioned in the amount of $2,160.00 to be paid to counsel for the Defendants no later than 1/2/2015. Breen shall file a Notice of Compliance with this Order no later than 1/9/2015. By Judge William J. Martinez on 12/12/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-02197-WJM-MEH
BEN GUNN, and
JENNIFER GUNN,
Plaintiffs,
v.
WILLIAM C. CARTER,
Defendant,
WCA LOGISTICS, LLC, and
WCA LOGISTICS II, LLC,
Defendants/Third-Party Plaintiffs,
v.
JOHN E. BREEN,
Third-Party Defendant.
_____________________________________________________________________
ORDER OVERRULING THIRD-PARTY DEFENDANT’S OBJECTIONS TO THE
UNITED STATES MAGISTRATE JUDGE’S ORDER ON MOTION TO COMPEL AND
ORDER RE: SANCTIONS
_____________________________________________________________________
This matter is before the Court on United States Magistrate Judge Michael E.
Hegarty’s Order on Motion to Compel (ECF No. 79) and Order Re: Sanctions (ECF No.
91) (jointly the “Orders”). Third-Party Defendant John E. Breen has filed Objections to
these Orders. (ECF No. 102.) For the reasons set forth below, the Court affirms both
Orders in their entirety and overrules Third-Party Defendant’s Objections.

I. BACKGROUND
On December 5, 2013, Defendants WCA Logistics, LLC and WCA Logistics II,
LLC (together “Defendants”) filed a Third-Party Complaint against John E. Breen
(“Breen”) alleging legal malpractice among other claims. (ECF No. 19.) When Breen
failed to comply with his initial disclosure requirements under Fed. R. Civ. P.
26(a)(1)(D), Defendants sent him a letter demanding the required disclosures. (ECF
No. 55-2.) The letter specifically requested information regarding Breen’s professional
liability insurance coverage, which Breen’s disclosures subsequently failed to provide.
(ECF No. 34 at 5.) In his response to Defendants’ First Set of Written Discovery
Requests, Breen admitted that he had malpractice coverage in effect on December 5,
2013. (ECF No. 69-1 at 4.) His response did not, however, provide a copy of the policy
or the insurance carrier’s name. (Id.) Defendants contacted Breen via phone in an
effort to obtain the information (ECF No. 55 at 4), and thereafter sent him a final
demand via email (ECF No. 55-1). The email informed Breen that Defendants would
file a motion to compel if they did not receive the insurance disclosures by noon the
following day. (ECF No. 55-1.) Defendants did not receive the information, and they
filed a Motion to Compel disclosure of the insurance Information. (ECF No. 55.)
On July 30, 2014, Judge Hegarty granted Defendants’ Motion to Compel in part,
and, in accordance with Federal Rule of Civil Procedure 37, awarded Defendants their
reasonable attorneys’ fees and costs incurred in filing the Motion. (ECF No. 79.) Judge
Hegarty’s Order directed Defendants to file an affidavit of attorneys’ fees, and allowed
Breen time to respond to the affidavit once submitted. (Id. at 5.) Breen did not object

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to Defendants’ affidavit. (ECF No. 91 at 1.) On August 19, 2014, Judge Hegarty
sanctioned Breen in the amount of $2,160.00. (Id.) Breen filed an objection to both
Orders on September 2, 2014. (ECF No. 102.)
II. LEGAL STANDARD
In considering objections to non-dispositive rulings by a Magistrate Judge, such
as that at issue here, the Court must adopt the Magistrate Judge’s ruling unless it finds
that the ruling is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C.
§ 636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); Ariza v. U.S.
West Communications, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly
erroneous standard “requires that the reviewing court affirm unless it on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988).
The “contrary to law” standard permits “plenary review as to matters of law,” 12 Charles
Alan Wright, Arthur R. Miller, Richard L. Cooper, Federal Practice and Procedure §
3069, at 355 (2d ed. 1997), but the Court will set aside a Magistrate Judge’s order only
if it applied the wrong legal standard or applied the appropriate legal standard
incorrectly. See Wyoming v. United States Dep’t of Agriculture, 239 F. Supp. 2d 1219,
1236 (D. Wyo. 2002). “Because a magistrate judge is afforded broad discretion in the
resolution of non-dispositive . . . disputes, the court will overrule the magistrate judge’s
determination only if his discretion is abused.” Ariza v. U.S. West Communications,
Inc., 167 F.R.D. 131, 133 (D. Colo. 1996); see also Wright et al., supra, at 350 (noting
that the “contrary to law” standard appears to invite plenary review but noting that

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“many matters . . . might be better characterized as suitable for an abuse-of-discretion
analysis.”).
III. ANALYSIS
Breen objects to Judge Hegarty’s imposition of sanctions against him in
connection with Defendants’ Motion to Compel. (ECF No. 102.) Specifically, Breen
argues that (1) he had a legitimate basis for withholding his insurance information; (2)
regardless, the insurance policy does not provide coverage for Defendants’ claims; and
(3) Judge Hegarty erroneously held that Defendants met the conferral requirements of
D.C.COLO.LCivR 7.1(a) prior to filing their Motion to Compel. (Id. at 1-2.) The Court
will address each argument in turn.
A.

The Timeliness of Breen’s Objections
As Breen’s Objection raises issues related to whether he was required to

disclose his insurance policy, his Objection is directed towards Judge Hegarty’s July 30,
2014 Order granting Defendants’ Motion to Compel. (ECF No. 79.) Rule 72(a) requires
that any objection to a Magistrate Judge’s non-dispositive order be filed within 14 days
of service of that order. Because Breen’s Objections were filed on September 2,
2014—well in excess of 14 days after Judge Hegarty’s ruling—they are almost certainly
untimely. This alone is sufficient to overrule Breen’s Objections. Int’l Surplus Lines Ins.
Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir. 1995) (failure to timely
object constitutes waiver of right to challenge non-dispositive ruling by Magistrate
Judge). Nonetheless, in the interests of justice, the Court will consider the merits of the
Objections.

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B.

Whether Breen Lawfully Withheld the Insurance Policy
Breen attempts to justify his non-disclosure of the insurance policy by arguing

that he submitted two letters from his insurance carrier that “conclusively prove[ ] that
there is no insurance coverage.” (ECF No. 102 at 8.) Breen additionally states he
withheld the insurance information because Defendants’ sole objective in obtaining the
policy was to seek a settlement and avoid litigation. (Id.)
The Court rejects both of these explanations. The Court has reviewed the letters
from Breen’s insurance carrier and agrees with Defendants that they are not conclusive
on the issue of coverage. (ECF Nos. 73-1 & 73-2.) Moreover, Breen’s concerns
regarding Defendants’ motives are irrelevant with regard to his duty to produce the
policy. Federal Rule of Civil Procedure 26(a) requires that all parties automatically
disclose “any insurance agreement [that] . . . may . . . satisfy all or part of a possible
judgment in the action . . . .” Id. at 26(a)(1)(A)(iv). Breen’s initial disclosures were due
by January 8, 2014, yet he did not provide the policy information until June 26, 2014,
despite the requirements of Rule 26 and Defendants’ numerous requests. (ECF No. 79
at 2-3.) The Court accordingly finds that Breen has failed to show that the Magistrate
Judge’s Order compelling disclosure of the insurance policy was clearly erroneous.
The Court agrees with the Magistrate Judge’s analysis of this issue and adopts such
analysis here.
C.

Whether the Parties Properly Conferred Under D.C.COLO.LCivR 7.1(a)
Breen further argues that, even if he was required to disclose his insurance

policy, Defendants did not attempt to confer with him regarding the policy prior to filing

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their Motion to Compel, and that such failure to confer was grounds to deny the Motion.
(ECF No. 102 at 2-7.) D.C.COLO.LCivR 7.1(a) provides that counsel, before filing a
motion, must confer or make reasonable efforts to confer with opposing counsel in
attempt to resolve any disputes. Any subsequent motion must contain a description of
the good faith efforts taken to confer with counsel. Id. “The purpose of Local Rule
7.1(a) is to conduct a motion-specific conference to ensure that the moving party is
asserting only those issues that are truly in dispute.” Medcorp, Inc. v. Pinpoint
Technologies, Inc., 2008 WL 5226387, at *1 (D. Colo. Dec. 12, 2008). If the parties
have not held a meaningful discussion in an effort to reach an agreement, the movant
must have made a good-faith effort to do so. Cunningham v. Standard Fire Ins. Co.,
2008 WL 2247860, at *1 (D. Colo. May 29, 2008). Both the quantity and the quality of
the contacts between counsel are considered to determine compliance with Local Rule
7.1(a). Id.
In this case, Defendants attempted to obtain Breen’s insurance information
multiple times, including three separate communications to Breen specifically
requesting the policy. (ECF No. 55 at 3-4.) As Judge Hegarty observed, Defendants
had every “reason to believe that the dispute could not be resolved without the Court’s
assistance.” (ECF No. 79 at 4.) In fact, Breen only produced the policy after
Defendants’ Motion to Compel was filed. (ECF No. 111 at 3.) The Court therefore finds
that Defendants satisfied the conferral requirements of D.C.COLO.LCivR 7.1(a) and
that Breen has failed to show the Magistrate Judge’s Order granting the Motion to
Compel was clearly erroneous.

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IV. CONCLUSION
For the foregoing reasons, it is ORDERED that:
1.

Third-Party Defendant John E. Breen’s Objections (ECF No. 102) to Magistrate
Judge Hegarty’s Orders (ECF Nos. 79 & 91) are OVERRULED;

2.

Judge Hegarty’s Orders (ECF Nos. 79 & 91) are AFFIRMED and ADOPTED in
their entirety; and

3.

Third-Party Defendant John E. Breen is sanctioned in the am ount of $2,160.00,
to be paid to counsel for the Defendants no later than January 2, 2015. Breen
shall file a Notice of Compliance with this Order no later than January
9, 2015.
Dated this 12th day of December, 2014.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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