Lesti et al v. Wells Fargo Bank NA

Filing 270

OPINION AND ORDER overruling in part, sustaining in part, and recomitting in part 180 Appeal, Objection, and Motion to Partially Overturn Magistrate Judge's Order. The objection to the denial of the motion to compel is overruled; the objection to the failure to address fees and costs is sustained and the issue is recommitted to the Magistrate Judge for consideration. Signed by Judge John E. Steele on 5/28/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PETRA RICHTER, individually
and on behalf of all others
similarly situated,
Plaintiff,
v.

Case No: 2:11-cv-695-FtM-29DNF

WELLS FARGO BANK NA,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiffs'1 Appeal,
Objection and Motion to Partially Overturn Magistrate Judge's
Order Granting in Part and Denying in Part Plaintiffs' Motion to
Compel Wells Fargo to Produce Documents Responsive to Plaintiff's
Second Request for Production (Doc. #180) filed on March 6, 2014.
Defendant filed a Response on April 3, 2014.
On February 20, 2014, the Magistrate Judge entered an Order
(Doc. #165) granting in part and denying in part plaintiffs’ Motion
to

Compel

Wells

Fargo

to

Produce

Documents

Responsive

Plaintiffs’ Second Request for Production (Doc. #113).

to
More

specifically, the motion was granted as to Request Nos. 9 through
15 and 30 and plaintiffs were directed to provide a precise

1

At the time of its filing, Franz Lesti was still a named
party in the case. Therefore, for the sake of consistency, the
Court will maintain the reference to plaintiffs in the plural.

definition

of

the

information

they

were

requesting

from

the

reports; the motion was granted as to Request No. 20 to the extent
that Wells Fargo was directed to produce a privilege log for the
documents withheld; the motion was denied as to Request Nos. 2, 3,
4, 6, 7, 8, 19 and 33; and the motion was denied as to Request No.
39 and 40, except that Wells Fargo was directed to provide the
Bates

Stamp

provided.

numbers

of

the

responsive

documents

previously

Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court may

reconsider or review the Magistrate Judge’s Order on a pretrial
matter if shown that it was clearly erroneous or contrary to law.
“The judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions.”

Id.

Plaintiffs object to the denial of the Motion to Compel with
regard to Request Nos. 6, 7, 8, because defendant produced the
documents after the motion was filed but before the entry of the
Order.

The Magistrate Judge denied the motion to compel without

prejudice to plaintiffs reviewing the production because the Court
could not ascertain whether the production satisfied the Requests.
The objection is overruled.

The Magistrate Judge recognized and

considered that the production was not made until February 10,
2014.

(Doc. #165, p. 5.)

The denial without prejudice to file

another motion was not overly burdensome and plaintiffs had the
opportunity to seek additional relief in the form of fees, if a

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second

motion

was

required.

The

decision

was

not

clearly

erroneous or contrary to law.
Plaintiffs further object that the Magistrate Judge failed to
make a finding with regard to an award of fees and costs under
Fed. R. Civ. P. 37(a).

This objection is sustained to the extent

that the request for attorney’s fees and costs in the Motion to
Compel

(Doc.

#113)

was

not

addressed.

The

issue

will

be

recommitted to the Magistrate Judge to consider the request in the
first instance.

Although plaintiffs argue to the contrary, the

granting of fees and costs are not required if:
(i) the movant filed the motion before
attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure,
response, or objection was substantially
justified; or
(iii) other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A).

Therefore, the Magistrate Judge will

have the opportunity to consider if an award is appropriate.
Accordingly, it is hereby
ORDERED:
Plaintiffs'

Appeal,

Objection

and

Motion

to

Partially

Overturn Magistrate Judge's Order Granting in Part and Denying in
Part Plaintiffs' Motion to Compel Wells Fargo to Produce Documents
Responsive to Plaintiff's Second Request for Production (Doc.
#180) is OVERRULED IN PART, SUSTAINED IN PART, AND RECOMMITTED IN

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PART.

The objection to the denial of the Motion to Compel Request

Nos. 6, 7, and 8 is overruled.

The objection to the failure to

address attorney’s fees and costs pursuant to Fed. R. Civ. P. 37(a)
is sustained and the issue is recommitted to the Magistrate Judge
for consideration.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2014.

Copies:
Hon. Douglas N. Frazier
Counsel of Record

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28th

day