SCUOTTO et al v. LAKELAND TOURS LLC, et al

Filing 56

ORDER overruling 40 Defendant Lakeland Tours' Objections to Magistrate Judge's Order Dated December 24, 2014. Signed by Judge Marcia Morales Howard on 3/27/2015. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VINCENT SCUOTTO and
CAROL SCUOTTO,
Plaintiffs,
v.

Case No. 3:13-cv-1393-J-34JRK

LAKELAND TOURS, LLC, d/b/a
WORLDSTRIDES HERITAGE
PERFORMANCE, a Delaware limited
liability company, SMG, a Pennsylvania
general partnership, and SMG FOOD AND
BEVERAGE, LLC, d/b/a
SAVOR...JACKSONVILLE, a Delaware
limited liability company,
Defendants.
__________________________________/

ORDER
THIS CAUSE is before the Court on Defendant Lakeland Tours’ Objections to
Magistrate Judge’s Order Dated December 24, 2014 (Doc. 40; Objections), filed on January
5, 2015. Pursuant to Rule 72, Federal Rules of Civil Procedure (Rule(s)), and 28 U.S.C. §
636, Defendant Lakeland Tours, LLC, d/b/a WorldStrides Heritage Performance
(WorldStrides) objects to the Order (Doc. 38; Order) signed by the Honorable James R.
Klindt, United States Magistrate Judge, on December 24, 2014.1 In the Order, Magistrate
Judge Klindt granted Plaintiffs’ Motion to Compel Production of Incident Report (Doc. 31;
Motion to Compel), and directed WorldStrides to produce to Plaintiffs a copy of the incident
1

The Order was entered on the Court’s docket on December 28, 2014.

report completed on December 31, 2012 (the Incident Report).

See Order at 5.

WorldStrides contends that the Magistrate Judge’s Order is contrary to law and clearly
erroneous and requests that this Court reverse the Order. See Objections at 1-2. Plaintiffs
Vincent and Carol Scuotto (the Scuottos) responded to the Objections on January 13, 2015.
See Plaintiffs’ Response to Lakeland Tours’ Objection to Magistrate Judge’s Order Dated
December 24, 2014 (Doc. 42; Response). In support of its Objections, WorldStrides also
filed a notice of supplemental authority. See Defendant’s Notice of Filing Supplemental
Authority in Support of its Objections to Magistrate Judge’s Order Dated December 24, 2014
(Doc. 46), filed February 13, 2015.
I.

Standard of Review
Inasmuch as the Magistrate Judge’s December 24, 2014 Order on Plaintiffs’ Motion

to Compel does not dispose of a claim or defense of any party, it is a nondispositive order.
See Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (per curiam).
As such, to prevail in its Objections, WorldStrides must establish that the conclusions to
which it objects in the Order are clearly erroneous or contrary to law. See Rule 72(a); 28
U.S.C. § 636(b)(1)(A); see also Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17
(5th Cir. Unit A June 1981);2 Nat'l Ass’n for the Advancement of Colored People v. Fla. Dep’t
of Corrs., 122 F. Supp. 2d 1335, 1337 (M.D. Fla. 2000); Williams v. Wright, No. 3:09-cv-055,
2009 WL 4891825, at *1 (S.D. Ga. Dec.16, 2009) (“A district court reviewing a magistrate
judge’s decision on a nondispositive issue ‘must consider . . . objections and modify or set

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit
adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
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aside any part of the order that is clearly erroneous or is contrary to law.’”) (quoting Rule
72(a)).3 “Clear error is a highly deferential standard of review.” Holton v. City of Thomasville
Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005) (citation omitted). “[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.” Id.
(citations and quotations omitted); see also Weeks v. Samsung Heavy Indus. Co., Ltd., 126
F.3d 926, 943 (7th Cir. 1997) (“The clear error standard [under Rule 72(a) and 28 U.S.C. §
636(b)(1)(A)] means that the district court can overturn the magistrate judge’s ruling only if
the district court is left with the definite and firm conviction that a mistake has been made.”).
A magistrate judge’s order “is contrary to law ‘when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.’” Botta v. Barnhart, 475 F. Supp. 2d 174, 185
(E.D.N.Y. 2007) (quoting Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 206 F.R.D. 78, 86
(S.D.N.Y. 2002); see also Pigott v. Sanibel Dev., LLC, Civil Action No. 07-0083-WS-C, 2008
WL 2937804, at *5 (S.D. Ala. July 23, 2008) (similar) (citation omitted); Schaaf v. SmithKline
Beecham Corp., Civil Action No. 1:04-cv-2346-GET, 2008 WL 489010, at *3 (N.D. Ga. Feb.
20, 2008) (similar) (citation omitted).4 Moreover, a magistrate judge is afforded broad

3

“Although an unpublished opinion is not binding . . ., it is persuasive authority.” United States v.
Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2
(“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”).
4

The Court notes some authority that the “contrary to law” standard invites plenary review of a
magistrate judge’s legal conclusions. See e.g., Haines v. Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992);
Milwaukee Carpenter’s Dist. Council Health Fund v. Philip Morris, Inc., 70 F. Supp. 2d 888, 892 (E.D. Wis.
1999); Computer Econ., Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 & n.2 (S.D. Cal. 1999). In this
Circuit, however, the “contrary to law” standard has been distinguished as more deferential than de novo review.
See Merritt, 649 F.2d at 1016-17 (“[A] magistrate[’s nondispositive orders] are reviewable under the ‘clearly
erroneous and contrary to law’ standard; they are not subject to a de novo determination as are a magistrate’s
proposed findings and recommendations.”). Nonetheless, even to the extent the “contrary to law” standard may
(continued...)
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discretion in issuing nondispositive pretrial orders related to discovery such as the
December 24, 2014 Order. See Tracy P. v. Sarasota Cnty., No. 8:05-CV-927-T-26EAJ,
2007 WL 1364381, at *2 (M.D. Fla. May 9, 2007); see also Rule 6.01(c)(18), Local Rules,
United States District Court, Middle District of Florida (Local Rule(s)) (authorizing magistrate
judges to supervise and determine pretrial proceedings and motions in civil cases, including
discovery motions).
II.

Background
The Scuottos’ Motion to Compel concerns the Incident Report prepared by

employees of WorldStrides within hours of the slip and fall accident giving rise to this lawsuit.
See Motion to Compel at 1. In response to the Scuottos’ discovery requests, WorldStrides
identified the existence of the Incident Report but objected to its production, claiming workproduct protection. See Motion to Compel at 3, Ex. B at 3. The Scuottos then filed the
Motion to Compel seeking production of the Incident Report. Id. at 20. The Magistrate
Judge determined that the Incident Report is not protected by the work-product doctrine, and
that, even if it is, the Scuottos have demonstrated a substantial need for the information
contained in the Incident Report.

See Order at 2.

As such, Judge Klindt ordered

WorldStrides to produce the Incident Report. See Order at 5. Because the Magistrate

4

(...continued)
invite some level of plenary review, it is evident that because a magistrate is afforded broad discretion as to
discovery matters, reversal as to a magistrate’s discovery-related order is appropriate only where that discretion
is abused. See generally Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001)
(“[W]e accord district courts broad discretion over the management of pretrial activities, including discovery and
scheduling.”); Botta, 475 F. Supp. 2d at 185; Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 547-48
(D.N.J. 2006); Doe v. Marsh, 899 F. Supp. 933, 934 (N.D.N.Y. 1995); see also CHARLES ALAN WRIGHT, ARTHUR
R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3069 (2d ed. 1997) (“Regarding legal
issues, the language ‘contrary to law’ appears to invite plenary review. But many matters such as discovery
scheduling or disputes might better be characterized as suitable for an abuse-of-discretion analysis.”).
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Judge’s Order sets forth the background of this litigation, the facts underlying the Motion to
Compel, and the relevant evidence, the Court will not further summarize the factual
background here.
III.

Discussion
WorldStrides devotes a substantial majority of its Objections to arguing that the

Magistrate Judge erred in determining that the Incident Report is not protected work-product.
See Objections at 4-10. WorldStrides maintains that the Incident Report was prepared in
anticipation of litigation and cites to non-binding authority where accident reports were found
to be protected by the work product doctrine. See id. at 4-5 (citing, e.g., Alexander v.
Carnival Corp., 238 F.R.D. 318, 318 (S.D. Fla. 2006)). The Scuottos argue that the cases
on which WorldStrides relies are distinguishable and assert that this case is most analogous
to the facts of Bridgewater v. Carnival Corp., 286 F.R.D. 636 (S.D. Fla. 2011). See
Response at 3-6. In Bridgewater, the court determined that two incident reports were not
protected under the work-product doctrine because, in creating the reports, the defendant’s
strong business interest in conducting its operations in a safe and reliable manner was
paramount to any concern over the possibility of a future lawsuit. See Bridgewater, 286
F.R.D. at 641-42.
Upon careful review, WorldStrides does not appear to object to the Magistrate
Judge’s recitation of the evidence, nor does WorldStrides contend that Judge Klindt applied
the wrong legal standard. Rather, the crux of WorldStrides’ argument is that, because some
courts have found similar evidence to be persuasive, the Magistrate Judge erred in affording
little weight to the statements of a litigation purpose in the affidavit of WorldStrides’ Chief

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Financial Officer. See Objections at 3, 5-7, 10. However, Judge Klindt was permitted to
make his own assessment of this evidence in light of the facts of this case. Given the broad
discretion afforded to Magistrate Judges on issues of discovery, it does not appear that
Judge Klindt’s assessment of WorldStrides’ evidence was clearly erroneous or contrary to
law.
Nonetheless, the Court need not decide the matter on this basis because Judge
Klindt also reached an alternative finding. In his Order, Judge Klindt concluded that even
if the Incident Report is work-product, WorldStrides must still produce the document
because the Scuottos have shown a “substantial need for the information contained in the
[Incident Report] and cannot, without undue hardship, obtain its substantial equivalent.” See
Order at 4. In its Objections, WorldStrides notes this finding, and merely objects that
“Plaintiff [sic] has already had the opportunity to obtain, and has obtained, the substantial
equivalent of the information sought through interrogatories propounded upon WorldStrides
seeking exactly the same information.” See Objections at 3-4. WorldStrides adds that the
Scuottos also had the opportunity to depose several employees of both WorldStrides and
Defendant SMG Food and Beverage, as well as a temporary staff member and two
independent contractors. Id. at 4. However, the Magistrate Judge explained that the
Scuottos have attempted to ascertain what happened on the day in question through
depositions and interrogatories, but “Defendant has not provided all of the factual
information contained in the incident report through either its responses to Plaintiffs’
interrogatories or through depositions of its employees.” See Order at 4-5. WorldStrides
does not offer any specific argument or cite to any record evidence to dispute this finding.

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Indeed, while the Scuottos have deposed several of the relevant witnesses, in light of
memory lapses and inconsistent statements, it was not clearly erroneous or contrary to law
for the Magistrate Judge to determine that the Scuottos have established a substantial need
for, and an inability to otherwise obtain, the information in the Incident Report. See Bryant
v. Texler Trucking, No. 4:11-cv-2254-RBH, 2012 WL 162409, at *3 (D.S.C. Jan. 18, 2012);
DeGiacomo v. Morrison, No. Civ. 02-310-M, 2003 WL 22871701, at *3 (D.N.H. Dec. 4,
2003); City of Springfield v. Rexnord Corp., 196 F.R.D. 7, 10 (D. Mass. 2000) (“One such
substantial need, for example, may be for statements taken from parties or witnesses at the
time of an incident.”); see also Rule 26(b)(3)(A)(ii), advisory comm. notes 1970 amend. In
light of the foregoing, it is
ORDERED:
Defendant Lakeland Tours’ Objections to Magistrate Judge’s Order Dated December
24, 2014 (Doc. 40) are OVERRULED.
DONE AND ORDERED in Jacksonville, Florida, this 27th day of March, 2015.

lc11
Copies to:
Counsel of Record

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