Seidman v. American Family Mutual Insurance Company
AMENDED 108 ORDER Overruling Plaintiff's Objections to Decision of the Magistrate Judge by Judge William J. Martinez on 11/03/2016. (cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-3193-WJM-KMT
AMERICAN FAMILY MUTUAL INSURANCE COMPANY
AMENDED* ORDER OVERRULING PLAINTIFF’S OBJECTION TO
DECISION OF MAGISTRATE JUDGE
This case arises out of an accident on August 7, 2012 in which Lawrence
Seidman (“Plaintiff”) was hit by an oncoming vehicle while riding his bicycle. (ECF No. 3
at 2.) At the time of the accident, Plaintiff was insured by American Family Mutual
Insurance Company (“Defendant”). (Id.) Plaintiff alleges, among other things, bad faith
and breach of insurance contract related to Defendant’s handling of Plaintiff’s
underinsured motorist claim. (Id. at 3.)
The Final Pretrial Conference was held on February 4, 2016, and the Final
Pretrial Order was entered. (ECF No. 67.) On February 19, 2016, Plaintiff filed a
Motion to Amend the Final Pretrial Order (“Motion to Amend”). (ECF No. 73.) On
February 29, 2016, Defendant filed a Motion to Strike Plaintiff’s 22nd, 23rd, 24th, 25th,
26th, 27th and 28th Supplemental Disclosurees [sic] and Related Portion of Plaintiff’s
Purpose of the amendment is to correct unintended editing remarks in footnote 1.
Motion to Amend the Final Pretrial Order and to Preclude New Witnesses and Exhibits
(“Motion to Strike”). (ECF No. 77.) The Court referred both motions to United States
Magistrate Judge Kathleen M. Tafoya pursuant to Federal Rule of Civil Procedure 72(a).
(ECF Nos. 74, 78.)
On May 26, 2016, the Magistrate Judge addressed both motions in a single order
(“Order”). (ECF No. 92.) The Order awarded attorneys’ fees to Defendant in a to-bedetermined amount. (Id. at 16.) On June 15, 2016, Defendant filed a Motion for Costs
and Attorneys’ Fees pursuant to the Order requesting the stipulated amount of $5,000.
(ECF No. 96.) This motion was also referred to the Magistrate Judge who issued an
order on September 26, 2016, awarding $5,000 in costs and attorneys’ fees to the
Defendant (“Order on Costs”). (ECF Nos. 103, 104.)
Before the Court are the following: (1) Plaintiff’s Objection/Appeal of Magistrate
Judge’s Order on Motion to Amend, Order on Motion to Strike (“Objection to Order”)
(ECF No. 94); and (2) Plaintiff’s Objection/Appeal of Magistrate Judge’s Order on
Motion for Costs (“Objection to Costs”). (ECF No. 105.) For the reasons set forth
below, both of Plaintiff’s Objections are overruled.
I. LEGAL STANDARD
“Discovery is a nondispositive matter . . . .” Hutchinson v. Pfeil, 105 F.3d 562,
566 (10th Cir. 1997). When reviewing an objection to a magistrate judge’s
non-dispositive ruling, the Court must adopt the 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, 105 F.3d at 566; Ariza v. U.S. West Commc’ns, 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 et al., Federal Practice & Procedure § 3069 (2d ed., Apr.
2015 update), 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. U.S. Dep’t of Agric., 239 F. Supp. 2d 1219, 1236 (D. Wyo. 2002). In short,
“[b]ecause a magistrate judge is afforded broad discretion in the resolution of nondispositive discovery disputes, the court will overrule the magistrate judge’s
determination only if his discretion is abused.” Ariza, 167 F.R.D. at 133.
Plaintiff’s Objection to Order on Motion to Amend/Order on Motion to Strike
Plaintiff’s Motion to Amend proposed an amended Final Pretrial Order that
included the following additional material: (1) medical animations, illustrations and
drawings, and an accident reconstruction video animation; (2) American Family
corporate documents; (3) medical records which pre-date and post-date the discovery
cut-off date; and (4) re-categorization of a previously listed medical witness. (ECF No.
73.) The Magistrate Judge allowed the Final Pretrial Order to be amended to include
Plaintiff’s medical records and American Family corporate documents as potential
exhibits, but ordered the animation disclosures stricken. (ECF No. 92 at 11, 17.)1
Medical Animations and Accident Reconstruction Video Animation
Rule 26 allows parties to supplement prior disclosures, in a timely manner, if the
prior response is incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the course of discovery.
Fed. R. Civ. P. 26(e)(1)(A). In addition to finding the disclosures untimely, the
Magistrate Judge found that the animations did not concern new or corrective
information. (ECF No. 92 at 8.) Plaintiff objects to the Order arguing that the animation
exhibits were not available to Plaintiff prior to February 19, 2016. (ECF No. 94 at 5–6.)
Whether true or not, this Court would still find no abuse of discretion in the Magistrate
Judge’s conclusion that the disclosures do not serve the purpose of Rule 26 because
the exhibits do not seek to correct or complete prior discovery. Therefore, this portion of
Plaintiff’s Objection to Order is overruled.
American Family Corporate Documents
The Magistrate Judge found that the American Family corporate
documents—documents Plaintiff discovered though his own efforts—were untimely and
in considering whether this Rule 26(e) violation is justified or harmless, the Magistrate
Judge applied the factors established by the Tenth Circuit in Woodworker’s Supply, Inc.
Plaintiff argues that the Order violates Plaintiff’s substantive rights under Colorado law
by abbreviating the Defendant’s duty of good faith to investigate Plaintiff's claim up to the end of
trial. (ECF No. 94 at 4.) The Court will not address this argument as issues not raised before
the Magistrate Judge are generally treated as waived. See Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). Moreover, the Court frankly does not believe Plaintiff’s implied
representation that he made these disclosures to assist Defendant’s evaluation of his insurance
claim. The animations and illustrations are plainly intended as argumentative tools to be
presented to a jury.
v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999), noting that
she found it “difficult to ascertain how the Defendant can actually be prejudiced by
inclusion of documents belonging to it, that it knew and acknowledged were relevant,
and that have been produced in several other cases in Colorado and around the
nation.” (ECF No. 92 at 13.) Defendant did not file an objection to this ruling pursuant
to Rule 72(a), but instead Defendant reiterates in its response to Plaintiff’s Objection
that the Court should strike the supplemental disclosures because they were untimely.
(ECF No. 98 at 6.) Whether or not Plaintiff’s disclosures were untimely, this objection is
procedurally improper (given that it is part of a response brief)2 and is itself untimely
(considering that it was presented more than 14 days after the Magistrate Judge’s
Order). Thus, the objection is waived. See Int’l Surplus Lines Ins. Co. v. Wyo. Coal
Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir. 1995).
The Magistrate Judge found that the supplemental disclosures objected to by
Defendant contained new medical records concerning Plaintiff’s medical treatment that
was rendered either prior to, during, or subsequent to the discovery cut-off date. (ECF
No. 92 at 14.) The Magistrate Judge reasoned that because Plaintiff's treatment is
ongoing, the tardiness of the disclosures can be excused because Plaintiff seeks to
complete discovery as required by Rule 26(e). (ECF No. 92 at 15.) Again, Defendant
did not file an objection to this ruling pursuant to Rule 72(a), but instead Defendant
Requests for any type of relief must be contained in a separate motion, and not
included in the body of a response or reply brief, or other filing. D.C.COLO.CivR 7.1(d); WJM
Revised Practice Standard III.B.
reiterates in its response to Plaintiff’s Objection that the Court should strike the
supplemental medical records because they were untimely. (ECF No. 98 at 6.) This
objection is also procedurally improper, thus the objection is waived. See Int’l Surplus,
52 F.3d at 905.
Re-Categorization of a Previously Listed Medical Witness
In briefing before the Magistrate Judge, Defendant stated that Plaintiff sought to
modify his witness list to add an additional medical professional (Williams Chambers,
MD) not previously disclosed. (ECF No. 77 at 12.) The Magistrate Judge noted that
“neither party advised the court why Plaintiff was attempting to add a witness . . . or for
that matter who Dr. Chambers is or what his relevance is to the case,” and
subsequently denied Plaintiff’s Motion to Amend in this respect. (ECF No. 92 at 17.)
Plaintiff does not object to the Magistrate Judge’s finding in his Objection. (ECF No.
94.) However, upon further review, this Court finds that both parties overlooked the
presence of Dr. Chambers in the Final Pretrial Order. (ECF No. 67 at 12.) The only
change Plaintiff actually proposed was to move Dr. Chambers to a separate row of the
witness table. (ECF No. 73-1 at 12.) Accordingly, the Magistrate Judge’s Order is not
disturbed in that Plaintiff may not amend the Final Pretrial Order to include a new
witness. (ECF No. 92 at 17.) However, as a previously disclosed witness, Dr.
Chambers will remain as a witness endorsed for trial by Plaintiff, as set forth in the Final
Pretrial Order. (ECF No. 67 at 12.)
Award of Costs and Attorneys’ Fees
The Magistrate Judge awarded all reasonable costs and attorneys’ fees to the
Defendant for preparation of the Motion to Strike as a sanction for Plaintiff’s late
disclosure of voluminous discovery after the Final Pretrial Order was entered. (ECF No.
92 at 16.) Pursuant to the Order, Defendant filed a Motion for Costs, stating that the
parties had conferred and reached an agreement in which the reasonable fees and
costs totaled $5,000, and the Magistrate Judge subsequently awarded that amount.
(ECF Nos. 96, 96-1, 104.)
Plaintiff now argues that it was improper for the Magistrate Judge to issue
sanctions sua sponte when (1) no discovery order was violated, and (2) Defendant had
not requested sanctions. (ECF No. 92 at 9.)
The first argument is moot in light of the Court’s agreement with the Magistrate
Judge that Plaintiff did violate discovery obligations.
As to the second argument, Plaintiff cites no authority for the proposition that
Defendant must request attorneys’ fees for such fees to be awarded. A better
argument—which Plaintiff never made in either of his Objections and which he has as a
result clearly waived (ECF Nos. 94, 104)—would be that Rule 37(c)(1) only permits an
award of attorneys’ fees “on motion and after giving an opportunity to be heard.”
Apparently the Magistrate Judge awarded attorneys’ fees on her own motion, but did
not provide Plaintiff an opportunity to be heard.
Considering Plaintiff’s lack of objection and resulting waiver, the Court could still
conceivably reach this issue on review by way of a plain error review standard. But
plain error requires “(1) error, (2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). The
Court finds that, regardless of the first three factors, the fourth factor is not present here.
A $5,000 attorneys’ fee sanction for the needless complication of this litigation caused
by these belated disclosures, even if imposed without the normal process, does not
seriously affect the fairness, integrity, or public reputation of judicial proceedings.
The Court therefore declines to overturn the Magistrate Judge’s award of
attorneys’ fees on a plain error basis, and her Order, ECF No. 92, is affirmed in all
Plaintiff’s Objection to Order on Motion for Costs
Plaintiff’s Objection to the Magistrate Judge’s Order on Costs (ECF No. 104) is in
substance a repeat of his first Objection. Therefore it is late, and even if it were not, for
the same reasons that the Court affirmed the Magistrate Judge’s Order in respect to the
award of attorneys’ fees, this Court finds that the Magistrate Judge’s Order granting
Defendant’s Motion for Costs was neither clearly erroneous nor contrary to law. The
Court affirms the Magistrate Judge’s Order on Costs.
For the reasons set forth above, the Court ORDERS as follows:
Plaintiff’s Objection to Order (ECF No. 94) is OVERRULED;
Plaintiff’s Objection to Order on Costs (ECF No. 105) is OVERRULED;
The Magistrate Judge’s Order (ECF No. 92) is AFFIRMED; and
The Magistrate Judge’s Order on Costs (ECF No. 104) is AFFIRMED.
Dated this 3rd day of November, 2016.
BY THE COURT:
William J. Martínez
United States District Judge
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