Electrolux Home Prod v. Whitesell Corp

Filing 1496

ORDER overruling Plaintiff's Objections and denying 1487 Motion to Strike and denying 1488 MOTION to Certify and/or Direct Entry of Final Judgment for Appeal Pursuant to Rule 54(b). The Court hereby Appoints Charles C. Stebbins, III as Special Master under Federal Rule of Civil Procedure 53, effective immediately. Signed by Chief Judge J. Randal Hall on 9/17/2021. (pts)

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

5

WHITESELL CORPORATION,

*

Plaintiff,

*
5

V.

*

ELECTROLUX HOME PRODUCTS, INC.,
HUSQVARNA, A.B., and HUSQVARNA
OUTDOOR PRODUCTS, INC.,

CV 103-050

*
*
*
*

Defendants.

ORDER APPOINTING
SPECIAL MASTER

On August 5, 2021, the Court entered

an Order whereby it

indicated its intent to appoint a Special Master under Federal
Rule of Civil Procedure 53.

(Doc. No. 1486.)

The Order of August

5, 2021 granted the parties fourteen days within which to file any
objections, suggestions, or modifications.

On September 2, 2021,

Plaintiff Whitesell Corporation filed its objections to the Order

of August 5^"^.!

Plaintiff also moved to strike two statements in

1 Plaintiff objects to the use of a Special Master for any purpose
in this case.
In doing so. Plaintiff reminds that Court of its
Order of February 17, 2010 {addressing Plaintiff's motion to vacate
the appointment of the previous Special Master), in which the Court
stated
that
it
""will
not
appoint
a
different
Special

Master/Mediator other than Mr. Herring during the pendency of this
case." (Doc. No. 288, at 13.) Over eleven years have passed, and
the undersigned judge was not presiding over the case at that time.
Right now, this judge is focused on preparing what remains of the
case for trial. As explained in the Order of August 5^^, the Court
cannot fathom trying to a jury invoice disputes involving over 300
parts without narrowing the issues and/or fashioning a trial plan

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 2 of 8

the Order of August 5^*^.

Defendants filed a response in opposition

to Whitesell's objections, to which Plaintiff has now filed a
reply.

The matter is ripe for resolution.

First, Plaintiff is greatly concerned that the Special Master

will usurp the role of the jury by making findings as to disputed
facts.

This concern is misplaced and belied by the Order of August

In particular, the Court characterizes the appointment of a

Special Master as "a run at summary judgment."
2021, at 6.)

(Order of Aug. 5,

It is the Court's intent that the Special Master

will examine the facts presented by the parties and recommend

summary judgment where appropriate and in accordance with Federal
Rule of Civil Procedure 56.

the

Court

through

a

Report

This examination will be presented to

and

Recommendation.

(Id.

at

8.)

"Any remaining disputed material facts that must be tried by a
jury" will then be part of a Report submitted by the Special Master

after consultation with the parties "for the purpose of developing
a detailed trial plan . . . ."

(Id. at 9.)

Thus, the Court has

in no way called for the usurpation of the jury in the Order of
August 5^*^.

Plaintiff's objection in this regard is overruled.

- circumstances that may not have been in the sharp focus of the
prior judge when the statement was made. Notably, Plaintiff has
not challenged the Court's expressed view that the subject claims
present a "herculean task" of presenting to a jury the individual
stories of over 300 parts.
2

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 3 of 8

Second, Plaintiff objects to the Court's selection of the
Special Master, Charles C. Stebbins III, Esq., because Mr. Stebbins
is

a

former

law

partner

of

the

presiding

judge

and

because

Defendant Husqvarna's counsel, Mr. R. Perry Sentell III, Esq.,
once provided a Declaration attesting to the reasonableness of Mr.
Stebbins' attorney's fees and costs in connection with an unrelated
case.

Rule 53 provides that a Special Master must not have a

relationship that would require disqualification of a judge under
28 U.S.C. § 455.

Upon consideration, the Court concludes that

neither of Plaintiff s grounds require disqualification under §
455, and

therefore

Plaintiff's

objections

to

Mr.

Stebbins

are

overruled as wholly without merit.
Finally,

the

Court

has

considered

Plaintiff's

request

strike two statements in the Court's Order of August 5*^^.
to

its

assertion,

Plaintiff's
factual

the

litigation

statements

of

two

statements

strategies.
the

do

not

Instead,

procedural

pass

background

Contrary

judgment

they
in

to

are

on

simply

the

case.

Accordingly, Plaintiff's motion to strike certain portions of the
August 5^^ Order is denied.
The Reply Brief of Plaintiff worries that this Special Master
appointment will be the same as the last appointment - that this

appointment

will

lead

to

^^five

years

of

unsuccessful

unproductive back and forth with a Special Master."
1495, at 4.)

and

(Doc. No.

Plaintiff states that what the parties need is to

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 4 of 8

have

their

feet

held

to

the

fire

in

trial

preparation

-

to

collaboratively work together to create witness and exhibit lists
and to ''draft a pretrial statement, narrow the issues, work on the

presentation of their respective cases, and otherwise
become trial ready."

(Id. at 3.)

work to

This is exactly the mission

that the Court contemplates and demands with the Special Master

appointment.

That is, the Court encourages all parties to approach

the appointment with ultimate focus on trial preparation - which
will be accomplished on the time schedule created by the parties

and enforced by the Special Master.

this approach

will lead

It remains to be seen whether

to settlement

or

a

recommendation

of

summary judgment on some or even most of the A/R claims; yet this
is an aspect to be explored by the Special Master.

In short, the

work contemplated by the appointment of the Special Master will be

as productive as the parties are prepared and willing to make it.
Plaintiff has been demanding a court-ordered trial preparation

period for some time, and while the Court cannot as yet set a trial
date, the Court is undertaking trial preparation on the A/R claims
with the help of this appointment.

Upon the foregoing. Plaintiff's objections to the appointment
of a Special Master as articulated in its filing of August 19,

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 5 of 8

2021 (doc. no. 1487) are OVERRULED.

Its motion to strike contained

therein (doc. no. 1487) is DENIED.^
Having

resolved

Plaintiff's

objections,

herein the Order of August 5, 2021, the

and

incorporating

Court hereby APPOINTS

Charles C. Stebbins III, Esq. as Special Master under Federal Rule
of Civil Procedure 53.

More particularly, the Special Master is

appointed to examine and address Count VI of the Second Amended
Complaint

related

to

certain

unpaid

invoices

and

inventory

(hereinafter referred to as the A/R claims) with the objective of

narrowing the number of claims or issues through summary judgment
or stipulations, if appropriate, and developing a trial strategy

for any remaining A/R claims.

This Order of Appointment shall

take effect immediately.

The Special Master is granted the full rights, powers, and
duties afforded by Rule 53(c) and shall act with all reasonable

2 With its objections. Plaintiff Whitesell contemporaneously filed
a ^'Motion to Certify and/or Direct Entry of Final Judgment for
Appeal Pursuant to Rule 54(b), Federal Rules of Civil Procedure."
Upon consideration of the parties' briefs and relevant law, the
Court concludes that Plaintiff's request would wrongfully fragment

the case, particularly because the same underlying facts and
theories of entitlement to recovery are intertwined throughout all
claims in the case.

Moreover, the Court will not saddle multiple

panels of the court of appeals with a case of this longevity and
complexity.
Simply put, neither certification nor direct appeal
through Rule 54(b) would advance the interests of judicial
administration and public policy. Accordingly, in the exercise of
its

considerable

discretion

on

the

matter,

Plaintiff's motion to certify (doc. no. 1488).
5

the

Court

DENIES

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 6 of 8

diligence to perform the following tasks as fairly and efficiently
as possible;
• Meet with the parties to identify the most efficient,
organized, and succinct presentation of the A/R claims
on a per part basis.
In so doing, the parties shall
endeavor to set feasible deadlines.

It is the Court's

expectation that a stipulated analytical framework will
be developed. The Court envisions that perhaps for each
and every part, the parties include information that
identifies any relevant contractual provision or prior
ruling of the Court; any stipulations of fact; any
statements of material facts that each side contends is

undisputed but for which there is no stipulation; any
statements of material disputed facts; any timeline of
events that relates the story of each part; any
supporting
exhibits,
discovery
responses,
and/or
testimony; and legal arguments for and against summary
judgment.
• Provide periodic status reports to the Court.
• Communicate and meet with the parties as needed in order
to permit the full and efficient performance of these
duties. The Special Master, however, shall not have any

ex parte communication with any party, attorney, witness
or the Court without prior notice to the parties; nor
shall any party, attorney, or witness have ex parte
communications with the Court without prior notice to

the parties.3 The only allowable ex parte communication
with the Special Master will be for the purpose of any
settlement or mediation effort, again with prior notice
to the parties.

• Conduct any necessary and appropriate evidentiary
hearing wherein the Special Master shall have the power
to compel, take, and record evidence.

3 The Court should not be included in matters involving logistics,

the management of the Special Master's activities and duties and
other procedural matters, or the submissions of the parties
including any legal briefs. Much like discovery, the Court should
not be included in any correspondence or submissions related to
the Special Master's appointment, other than periodic status
reports and Reports and Recommendations, except as absolutely
necessary.
6

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 7 of 8

• If appropriate, under Federal Rule of Civil Procedure
56, submit a Report and Recommendation to the Court
identifying undisputed findings of fact and conclusions
of law respecting the A/R claims and recommending
whether summary judgment should be granted with respect
to the part(s). Any party may file an objection to a
Report and Recommendation within 21 calendar days of the
date it is filed; failure

to

meet this

deadline

will

constitute a permanent waiver of any objection(s).
• Submit a Report identifying any remaining disputed
material facts that must be tried by a jury.
In order
to create this Report, the Special Master shall meet
with the parties for the purpose of developing a detailed
trial plan for each part to include a list of all
witnesses who will testify, all exhibits to be admitted,
and a proposed time limit for presentation. The Special
Master shall aggressively limit the time and number of
witnesses and exhibits proposed by the parties.
• Propose
structures
and
strategies
for
negotiations on the A/R claims if feasible.

settlement

• The Special Master shall file only periodic status
reports or Reports and Recommendations on the case
docket.
The Special Master need only preserve the
correspondence and documents received from the parties
and any correspondence and documents created by the
Special Master in the performance of his duties for a
period of ninety (90) days following the termination of
the appointment.
• The Special Master shall be compensated at his usual and
customary rate of $400 per hour.
The Special Master
shall incur only such fees and expenses as are reasonably
necessary to fulfill these duties.
The Special Master
shall maintain normal billing records of expenses and
the time spent on this matter with reasonably detailed
descriptions of the activities and matters worked upon.
Each party - (1) Plaintiff Whitesell Corporation; (2)
Defendant Electrolux
Home Products, Inc.; and (3)
Defendants
Husqvarna,
A.B.,
and
Husqvarna
Outdoor
Products, Inc. - shall bear 1/3 of the fees and
expenses.
The Special Master shall file a Statement of
Fees and Expenses with the Court on a monthly basis.

^ The Court overrules Plaintiff's objection to paying 1/3 of the
fees and expenses.

Case 1:03-cv-00050-JRH Document 1496 Filed 09/17/21 Page 8 of 8

The parties may file objections to the Statement of Fees
and Expenses within seven (7) calendar days of its filing
or any objection thereto is waived. The parties will be
required to make interim payments as the Court directs.
The parties shall provide full cooperation to the Special
Master.

The

parties shall timely comply with the rulings and

directives of the Special Master.
Special

Master

may,

if

Pursuant to Rule 53(c)(2), the

appropriate,

"impose

on

a

party

any

noncontempt sanction provided by Rule 37 or 45, and may recommend

a contempt sanction against a party."

Finally, the Special Master

shall enjoy the same protections from being compelled to give
testimony and from liability for damages as those enjoyed by judges
performing similar functions.

ORDER ENTERED at Augusta, Georgia, this /T^av of September,
2021.

J. RANDAll" HALL, C^HEF JUD(
UNITED STATES DISTRICT COURT

SOUTHeW DISTRICT OF GEORGIA