DIRECTV, LLC v. SPINA et al

Filing 101

ORDER - The Court OVERRULES Defendants' #97 Objection to Report and Recommendation on Plaintiff's Motion to Strike and for Sanctions to the extent that it ADOPTS the Magistrate Judge's #88 Report and Recommendation except for the basis for sanctions, which the Court finds are more properly imposed pursuant to Fed. R. Civ. P. 30(d)(2) rather than the Court's inherent power. The Court GRANTS DirecTV's #56 Motion to Strike and for Sanctions to the extent that absent an agreement by the parties to use portions of Mr. Spencer's deposition, Mr. Spencer's deposition is STRICKEN. The Court also GRANTS DirecTV's #56 Motion to Strike and for Sanctions to the extent that it finds DirecTV is entitled to its fees and costs in connection with the motion. The Court ORDERS that, within 14 days of the date of this Order, DirecTV shall either submit a Fee Petition, or shall file a Report advising that it is only seeking the fees and costs set forth in the Declaration of Attorney Christopher J. Hufnagel, [Filing No. 56-1]. Defendants shall have 7 days from the date of DirecTV's filing of a Fee Petition or Report to respond. No reply is necessary. The Court OVERRULES MCI's #98 Objection and Motion for Reconsideration of Report and Recommendation on Plaintiff's Motion to Dismiss and ADOPTS the Magistrate Judge's #89 Report and Recommendation in full. The Court GRANTS DirecTV's #68 Motion to Dismiss Amended Counterclaim and DISMISSES WITH PREJUDICE MCI's breach of contract counter-claim. As set forth in the Court's January 7, 2016 Order, the deadline for Defendants to file a Motion for Summary Judgment, and to file a response to DirecTV's Motion for Summary Judgment, is 30 days from the date of this Order. (See Order.) Signed by Judge Jane Magnus-Stinson on 6/3/2016. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DIRECTV, LLC, a California limited liability
company,
Plaintiff,
v.
VICTOR A. SPINA a/k/a Victor A. Spina, Jr.,
individually and as officer, director, shareholder, principal, manager, and/or member
of Martinsville Corral, Inc., MARTINSVILLE
CORRAL, INC. d/b/a Texas Corral a/k/a Shelbyville Texas Corral, and WILLIAM SPINA,
a/k/a William Anthony Spina, Jr.,
Defendants.

MARTINSVILLE CORRAL, INC.,
Counter Claimant,
v.
DIRECTV, LLC, a California limited liability
company,
Counter Defendant.

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1:15-cv-00104-JMS-TAB

ORDER
Presently pending before the Court are: (1) an Objection to Report and Recommendation
on Plaintiff’s Motion to Strike and for Sanctions, filed by Defendants Victor Spina, Martinsville
Corral, Inc. (“MCI”), and William Spina (collectively “Defendants”), [Filing No. 97]; and (2) an
Objection and Motion for Reconsideration of Report and Recommendation on Plaintiff’s Motion
to Dismiss, filed by MCI, [Filing No. 98]. For the reasons set forth herein, the Court OVERRULES Defendants’ Objections, [Filing No. 97; Filing No. 98], and ADOPTS the Magistrate
Judge’s Reports and Recommendations as discussed below, [Filing No. 88; Filing No. 89].

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I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(3) provides that the Court will review recommendations on dispositive motions de novo. Under de novo review, the Court is free to accept, reject,
or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3). Although no deference is owed
to a magistrate judge’s recommendation under the de novo standard, Blake v. Peak Prof. Health
Servs. Inc., 1999 WL 527927, *2 (7th Cir. 1999), it is important to remember that this Court is
essentially functioning as an appellate court in this context. Thus, even under de novo review,
“arguments not made before a magistrate judge are normally waived.” United States v. Melgar,
227 F.3d 1038, 1040 (7th Cir. 2000). As the Seventh Circuit Court of Appeals has observed, “there
are good reasons for the rule,” even in the context of de novo review. Id. Failure to fully develop
arguments before the magistrate judge may prejudice a party, and “a willingness to consider new
arguments at the district court level would undercut the rule that the findings in a magistrate judge’s
report and recommendation are taken as established unless the party files objections to them.” Id.
When a motion is nondispositive, the Court must modify or set aside any part of the magistrate judge’s order that is “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see
also 28 U.S.C. § 636(b)(1)(A). “The clear error standard 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.” Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943
(7th Cir. 1997). “An order is contrary to law when it fails to apply or misapplies relevant statutes,
case law, or rules of procedure.” Pain Center of SE Indiana, LLC v. Origin Healthcare Solutions,
LLC, 2014 WL 6674757, *2 (S.D. Ind. 2014) (citations and quotation marks omitted).

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II.
OBJECTION TO REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO STRIKE AND
FOR SANCTIONS
A. Background
Craig Spencer is a non-party witness, and his company is a DirecTV reseller. [Filing No.
65-4 at 3.] In September 2015, Defendants’ counsel, Paul Overhauser, served a subpoena on Mr.
Spencer in South Carolina to attend a deposition in Indiana. [Filing No. 88 at 2.] 1 The subpoena
also requested that Mr. Spencer produce certain documents. [Filing No. 88 at 2.] DirecTV’s
counsel received a copy of a Notice of Deposition for Mr. Spencer on September 14, 2015 from
Mr. Overhauser’s office, but Mr. Overhauser did not serve a copy of the subpoena on counsel for
DirecTV. [Filing No. 88 at 2.]
Subsequently, DirecTV’s counsel attempted on several occasions to confirm with Mr.
Overhauser whether Defendants had subpoenaed Mr. Spencer, or whether he was appearing for
his deposition voluntarily. [See, e.g., Filing No. 56-1 at 1-3.] Mr. Overhauser refused to provide
that information. [Filing No. 56-1 at 1-3.] Mr. Spencer’s deposition took place at Mr. Overhauser’s office in Greenfield, Indiana on September 25, 2015, with counsel for DirecTV participating
telephonically. [Filing No. 56-1 at 3-4.] Mr. Overhauser asked Mr. Spencer if he was attending
the deposition voluntarily and Mr. Spencer responded that he was. [Filing No. 56-1 at 34-35.] Mr.
Spencer also testified, however, that he had received a subpoena from Mr. Overhauser to attend
the deposition. [Filing No. 56-1 at 37-38.]

1

The Court draws in part from the Magistrate Judge’s Report and Recommendation in setting forth
the background facts, which are largely undisputed by the parties.
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DirecTV filed a Motion to Strike and for Sanctions on October 28, 2015, arguing that Mr.
Overhauser blatantly disregarded the Federal Rules of Civil Procedure by serving an invalid subpoena on an unrepresented, non-party witness. [Filing No. 56; Filing No. 57 at 5-6.] DirecTV
argued that the subpoena was invalid because it required Mr. Spencer to travel more than 100 miles
to attend the deposition, and specifically noted that Mr. Overhauser admitted in a conference with
the Magistrate Judge that he knew the subpoena was invalid, did not serve a copy of the subpoena
on counsel for DirecTV, caused an unrepresented, non-party witness undue burden and expense
by having him travel from South Carolina to Indiana, and deprived DirecTV of an opportunity to
move to quash the subpoena. [Filing No. 57 at 6-8.]
The Magistrate Judge issued his Report and Recommendation on March 16, 2016, recommending that DirecTV’s Motion to Strike and for Sanctions be granted to the extent that Mr. Spencer’s deposition should be stricken and reasonable fees and costs be awarded pursuant to the
Court’s inherent authority. [Filing No. 88.] The Magistrate Judge also recommended that the
parties stipulate to using portions of Mr. Spencer’s deposition and, if they could not agree to do
so, that leave be given to conduct another deposition of Mr. Spencer within 45 days of adoption of
the Report and Recommendation. [Filing No. 88 at 7.] Defendants timely filed their Objection on
March 30, 2016. [Filing No. 97.]
B. Discussion
Defendants argue in their Objection that Mr. Spencer voluntarily appeared for his deposition, that the inadvertent failure to attach a copy of the subpoena to DirecTV’s Notice of Deposition
does not warrant sanctions, that the subpoena was not geographically deficient because Mr. Spencer regularly conducts business in Indiana, that there is no evidence Mr. Overhauser violated Fed.
R. Civ. P. 45(b)(1) by failing to tender a witness fee, and that sanctions are not appropriate under

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either Fed. R. Civ. P. 30(d) or the Court’s inherent authority. [Filing No. 97 at 6-14.] Specifically,
Defendants argue that DirecTV did not seek sanctions pursuant to the Court’s inherent authority,
so it was improper for the Magistrate Judge to impose them on that basis. [Filing No. 97 at 1415.]
In response, DirecTV relies on the arguments it set forth in its Motion to Strike and for
Sanctions. [Filing No. 99.]
At the outset, the Court notes DirecTV’s Motion to Strike and for Sanctions is both nondispositive and dispositive in nature. A motion to strike deposition testimony is nondispositive,
and a district court must only set aside a decision by a magistrate judge on a nondispositive motion
to the extent that it is clearly erroneous or contrary to law. See Fed. R. Civ. P 72(a); Weeks, 126
F.3d at 943 (“The district court’s review of any discovery-related decisions made by the magistrate
judge is governed by Rule 72(a) of the Federal Rules of Civil Procedure”). The Seventh Circuit
Court of Appeals has instructed that motions for sanctions, however, whether brought pre- or posttrial, are dispositive and a magistrate judge’s report and recommendation regarding such a motion
must be reviewed de novo. Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 869
(7th Cir. 1996). In this case, the difference between clearly erroneous and de novo review is irrelevant because, as the Court explains below, the Court agrees with the Magistrate Judge’s Report
and Recommendation in all respects except one, where the result is the same but the supporting
authority is different.
The Court has reviewed the briefing on DirecTV’s Motion to Strike and for Sanctions, the
Magistrate Judge’s Report and Recommendation, and the briefing on Defendants’ Objection. The
Court notes that the Magistrate Judge is intimately familiar with the facts and procedural posture
of this case, and particularly with issues regarding the deposition of Mr. Spencer. The Court has

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concluded that Defendants’ objections are not well taken under either a de novo or clearly erroneous standard of review, and are simply a rehash of the arguments they made in response to the
Motion to Strike and for Sanctions.
Specifically, first, the Court rejects Defendants’ argument that Mr. Spencer appeared voluntarily for his deposition, so any issues regarding the subpoena are irrelevant. The Court agrees
with the Magistrate Judge that the focus here is on Mr. Overhauser’s conduct, which undisputedly
involved his repeated refusals to provide DirecTV’s counsel with information regarding whether
Mr. Spencer had been subpoenaed, and the undisputed fact that Mr. Overhauser did not comply
with Fed. R. Civ. P. 45 when he failed to serve the subpoena (which requested the production of
documents) on DirecTV. The Court finds it unlikely that this failure was inadvertent, given Mr.
Overhauser’s refusal to answer questions from DirecTV’s counsel regarding whether a subpoena
had been served on Mr. Spencer. But, inadvertent or not, this failure constituted a violation of
Fed. R. Civ. P. 45. Even if Mr. Spencer did not mind attending the deposition – due to his son’s
wedding in Indiana or for whatever reason – this does not negate the fact that Mr. Overhauser
violated the Federal Rules of Civil Procedure.
Second, the Court agrees with the Magistrate Judge that the subpoena violated Fed. R. Civ.
P. 45(c) because it required Mr. Spencer to travel more than 100 miles from his residence, employment, or location where he regularly transacts business. Mr. Overhauser admitted to the Magistrate Judge that Mr. Spencer was outside of Rule 45’s geographical limitation when he served
the subpoena. [Filing No. 88 at 4.] Mr. Spencer’s new claim that he regularly transacts business
in Carmel, Indiana is contradicted by the fact that Mr. Spencer stated that attending a deposition
in Indiana was convenient because his son was getting married there. [See Filing No. 65-3.] Put

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simply, Mr. Spencer’s claim that he regularly transacts business in Indiana “smells fishy,” as the
Magistrate Judge noted. [Filing No. 88 at 5.]
Third, the Court agrees with the Magistrate Judge’s conclusion that Mr. Overhauser did
not compensate Mr. Spencer and so violated Fed. R. Civ. P. 45(b)(1). DirecTV’s counsel asked
Mr. Spencer in his deposition if he was compensated for his attendance at the deposition, and Mr.
Spencer replied “No, no.” [Filing No. 56-1 at 39.] Mr. Overhauser argues that Mr. Spencer’s
testimony is confusing, but the Court finds that his testimony could not be clearer.
Fourth, the Court reaches the same conclusion regarding the appropriateness of sanctions
as that reached by the Magistrate Judge, albeit through a slightly different route. Defendants are
correct that DirecTV did not seek sanctions pursuant to the Court’s inherent authority, but this is
of no moment. The Court finds that sanctions are appropriate under Fed. R. Civ. P. 30(d)(2) in
any event. Rule 30(d)(2) provides that “[t]he Court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes,
delays, or frustrates the fair examination of the deponent.” The Court finds that Mr. Overhauser’s
actions amounted to depriving DirecTV of an opportunity to move to quash the subpoena, and to
be present in person for Mr. Spencer’s deposition so that DirecTV’s counsel could question him
in person and examine documents used at the deposition. Mr. Overhauser’s actions impeded and
frustrated DirecTV’s ability to object to Mr. Spencer’s deposition, and to fully participate in the
deposition. Accordingly, the Court agrees with the Magistrate Judge that sanctions are appropriate, but imposes them under Rule 30(d)(2).
In sum, the Court finds that the Magistrate Judge’s Report and Recommendation on the
Motion to Strike and for Sanctions is well-reasoned, thorough, and correct. Accordingly, Defendants’ Objection, [Filing No. 97], is OVERRULED, and the Court ADOPTS the Magistrate

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Judge’s Report and Recommendation except for the basis for sanctions, which the Court finds are
more properly imposed pursuant to Fed. R. Civ. P. 30(d)(2) rather than the Court’s inherent power.
The Court GRANTS DirecTV’s Motion to Strike and for Sanctions, [Filing No. 56], to the extent
that absent an agreement by the parties to use portions of Mr. Spencer’s deposition, Mr. Spencer’s
deposition is STRICKEN. Defendants may, however, conduct another deposition of Mr. Spencer
within 45 days of this Order, provided that Mr. Overhauser complies with the Federal Rules of
Civil Procedure. Additionally, the Court agrees with the Magistrate Judge’s recommendation that
any further deposition of Mr. Spencer must occur in Indiana, for the convenience of counsel. Obviously, then, the opportunity for an additional deposition is contingent upon Mr. Spencer’s willingness to voluntarily travel to Indiana. The Court also GRANTS DirecTV’s Motion to Strike
and for Sanctions, [Filing No. 56], to the extent that DirecTV is entitled to its fees and costs in
connection with the motion.
III.
OBJECTION TO REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO DISMISS
A. Background
On April 8, 2015, MCI asserted counterclaims against DirecTV for breach of contract,
interference with economic relationships, and abuse of process. [Filing No. 16 at 15-19.] DirecTV
moved to dismiss the counterclaims, arguing as to the breach of contract counterclaim that MCI
had not adequately alleged the existence of a contract, a breach thereof, damages, or causation.
[Filing No. 22; Filing No. 23 at 9-11.] The Magistrate Judge issued a Report and Recommendation
on August 11, 2015, recommending dismissal of the breach of contract counterclaim because
“MCI’s pleadings fail to give DirecTV notice as to what kind of contract MCI and DirecTV entered
into and what provisions DirecTV allegedly breached.” [Filing No. 42 at 5.] The Magistrate Judge

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did not address whether MCI had adequately pled damages. MCI did not object to the Report and
Recommendation, and the Court adopted it on August 27, 2015. [Filing No. 43.]
On September 30, 2015, MCI moved to amend its counterclaim, stating that the proposed
First Amended Counterclaim “includes sufficient ‘facts about the relevant contract and provisions
[MCI] claims DirecTV breached.’” [Filing No. 47 at 1.] DirecTV opposed the motion to amend,
arguing that MCI still had not pled the existence of a contract or the way DirecTV breached the
contract with sufficient specificity. [Filing No. 54 at 3-5.] The Magistrate Judge granted MCI’s
motion to amend, finding that “Plaintiff’s response brief raises good arguments in response to this
motion, but Defendant adequately addresses these arguments in its reply brief.” [Filing No. 58.]
DirecTV then moved to dismiss the amended counterclaim, arguing again that MCI had
not adequately alleged the existence of a contract, how DirecTV breached the contract, or damages
or causation. [Filing No. 69 at 12-16.] The Magistrate Judge issued a Report and Recommendation, finding that while MCI had adequately alleged the existence of a contract and a breach
thereof, it had not adequately alleged damages. [Filing No. 89 at 3-9.] Specifically, the Magistrate
Judge found that MCI’s damages allegations were “threadbare,” and rejected MCI’s contention
that it only needed to specifically plead damages if it was seeking “special damages.” [Filing No.
89 at 7.] The Magistrate Judge recommended dismissal of MCI’s breach of contract counterclaim
with prejudice. [Filing No. 89 at 8.] MCI timely filed its Objection on March 30, 2016. [Filing
No. 98.] 2

2

MCI titles its Objection as an “Objection and Motion for Reconsideration.” [Filing No. 98.] A
motion for reconsideration asks a district court to reconsider one of its own, earlier decisions.
Because MCI seeks review of the Magistrate Judge’s Report and Recommendation, an objection
brought under Fed. R. Civ. P. 72 is the proper mechanism for seeking that review and the Court
will treat the “Objection and Motion for Reconsideration” simply as an objection. It appears that
MCI treats its “Objection and Motion for Reconsideration” only as an objection as well. [See
Filing No. 98 at 4 (only setting forth the standard of review for an objection).]
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B. Discussion
In support of its Objection, MCI argues that its breach of contract counterclaim should not
be dismissed because the Magistrate Judge “implicitly found that the allegation as to damages was
sufficient,” so that decision is binding on the rest of the litigation under the “law of the case”
doctrine. [Filing No. 98 at 5-7.] MCI also argues that it adequately pleads damages, because its
damages are “common sense; one who has an agreement with another to receive something in
exchange for a payment, but does not get it, has been damaged.” [Filing No. 98 at 7.] MCI contends that if the Court concludes that the breach of contract counterclaim should be dismissed, then
the dismissal should be without prejudice. [Filing No. 98 at 9-10.]
In response, DirecTV relies on the arguments it set forth in its Motion to Dismiss. [Filing
No. 100.]
The Court reviews the Magistrate Judge’s Report and Recommendation de novo, since a
motion to dismiss is a dispositive motion. See Fed. R. Civ. P. 72(b)(3). The Court notes that the
Magistrate Judge is familiar with the history of MCI’s breach of contract counterclaim and, as with
the Report and Recommendation on DirecTV’s Motion to Strike and for Sanctions, has provided
a thorough and reasoned analysis in connection with this Report and Recommendation. The Court
will not belabor the issues discussed by the parties, but is compelled to address a few items.
First, MCI argues at length about the “law of the case” doctrine, but did not raise this argument in response to DirecTV’s Motion to Dismiss. [See Filing No. 72 at 2-4 (arguing only that
facts DirecTV sets forth are irrelevant; and that MCI adequately alleges the existence of a contract,
a breach of the contract, damages as a result of the breach (and need only state its damages specifically if it is seeking “an item of special damages,” which it is not), and causation).] The Seventh
Circuit has instructed that “district courts should not consider arguments not raised initially before

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the magistrate judge, even [when] their review…is de novo,” and that there are “good reasons” for
this rule, including that “[f]ailure to raise arguments will often mean that facts relevant to their
resolution will not have been developed; [and] one of the parties may be prejudiced by the untimely
introduction of an argument.” Melgar, 227 F.3d at 1040. Additionally, “a willingness to consider
new arguments at the district court level would undercut the rule that the findings in a magistrate
judge’s report and recommendation are taken as established unless the party files objections to
them.” Id. The Court will not consider MCI’s “law of the case” argument since it raised the
argument for the first time in its Objection, but notes that the Magistrate Judge never made an
explicit finding regarding the adequacy of MCI’s damages allegations, so the doctrine would not
apply in any event.
Second, the Court reiterates the Magistrate Judge’s recommendation regarding the vague
nature of MCI’s damages allegations, which include only that “MCI was damaged by DirecTV’s
breach.” [Filing No. 59 at 3.] Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and
plain statement of the claim showing that the pleader is entitled to relief.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). But a complaint, or counterclaim, must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and must “give the defendant fair notice of
what the…claim is and the grounds upon which it rests,” Bell Atlantic v. Twombly, 550 U.S. 544,
555 (2007). While MCI need not detail the amount of damages, it must do more than simply state
that it “was damaged.” For example, as the Magistrate Judge noted, MCI could have alleged loss
of the ability to see certain programming, or loss of a certain length of the subscription. This bit
of detail would have provided DirecTV with fair notice of the nature of the counterclaim. MCI
chose not to provide any detail, but rather simply repeats the damages element of a breach of

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contract claim. The bare-bones allegation that it “was damaged” does not satisfy applicable pleading standards. See Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010) (threadbare
recitations of the elements of a claim “do not add to the notice that Rule 8 demands”); Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (“courts should not accept as adequate abstract recitations
of the elements of a cause of action or conclusory legal statements,” as they do not meet the pleading standards set forth in Twombly and Iqbal). Accordingly, the Court agrees with the Magistrate
Judge that MCI’s breach of contract counterclaim should be dismissed for failure to adequately
allege damages.
Finally, the Court also agrees with the Magistrate Judge that dismissal of the breach of
contract counterclaim should be with prejudice. Pursuant to Federal Rule of Civil Procedure
15(a)(1)(B), a plaintiff may amend its complaint as a matter of course in response to a motion to
dismiss. Brown v. Bowman, 2011 WL 1296274, *16 (N.D. Ind. 2011). The 2009 notes to that rule
emphasize that this amendment “will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the
need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.” MCI chose not to exercise its right to
amend as a matter of course pursuant to Rule 15(a)(1)(B) in response to the current Motion to
Dismiss but, instead, chose to brief the motion and adjudicate the issues. The Court is not required
to give MCI another chance to plead its breach of contract counterclaim because it has already had

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multiple opportunities to cure deficiencies in its pleadings. 3 See Emery v. American General Finance, Inc., 134 F.3d 1321, 1322-23 (7th Cir. 1998). Considering the procedural history of this
case, particularly the fact that MCI has already had the opportunity to re-plead its counterclaim,
the Court finds dismissal with prejudice appropriate.
The Court finds the Magistrate Judge’s Report and Recommendation on DirecTV’s Motion
to Dismiss to be factually and legally correct, and well-reasoned. Accordingly, MCI’s Objection
and Motion for Reconsideration of Report and Recommendation on Plaintiff’s Motion to Dismiss,
[Filing No. 98], is OVERRULED, and the Court ADOPTS the Magistrate Judge’s Report and
Recommendation in full. The Court GRANTS DirecTV’s Motion to Dismiss Amended Counterclaim, [Filing No. 68], and DISMISSES WITH PREJUDICE MCI’s breach of contract counterclaim.
IV.
CONCLUSION
For the foregoing reasons, the Court:
•

OVERRULES Defendants’ Objection to Report and Recommendation on
Plaintiff’s Motion to Strike and for Sanctions, [Filing No. 97], to the extent that
it ADOPTS the Magistrate Judge’s Report and Recommendation, [Filing No.
88], except for the basis for sanctions, which the Court finds are more properly
imposed pursuant to Fed. R. Civ. P. 30(d)(2) rather than the Court’s inherent
power;

•

GRANTS DirecTV’s Motion to Strike and for Sanctions, [Filing No. 56], to
the extent that absent an agreement by the parties to use portions of Mr. Spencer’s deposition, Mr. Spencer’s deposition is STRICKEN. Defendants may,
however, conduct another deposition of Mr. Spencer within 45 days of this Order, provided that Mr. Overhauser complies with the Federal Rules of Civil

3

Although the Magistrate Judge had not previously pointed out a deficiency with MCI’s damages
allegations, DirecTV argued in its initial Motion to Dismiss that MCI had not adequately alleged
damages. [Filing No. 23 at 10-11.] In other words, this issue did not come out of the blue, and
MCI was aware that DirecTV was making that argument. Moreover, when MCI saw that DirecTV
was making the damages argument again in the current Motion to Dismiss, [see Filing No. 69 at
14-16], it could have amended its counterclaim as a matter of course. It chose not to do so.
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Procedure and that Mr. Spencer is willing, for the convenience of counsel, to
travel to Indiana for the deposition. The Court also GRANTS DirecTV’s Motion to Strike and for Sanctions, [Filing No. 56], to the extent that it finds DirecTV is entitled to its fees and costs in connection with the motion. The Court
ORDERS that, within 14 days of the date of this Order, DirecTV shall either
submit a Fee Petition, or shall file a Report advising that it is only seeking the
fees and costs set forth in the Declaration of Attorney Christopher J. Hufnagel,
[Filing No. 56-1]. Defendants shall have 7 days from the date of DirecTV’s
filing of a Fee Petition or Report to respond. No reply is necessary;
•

OVERRULES MCI’s Objection and Motion for Reconsideration of Report
and Recommendation on Plaintiff’s Motion to Dismiss, [Filing No. 98], and
ADOPTS the Magistrate Judge’s Report and Recommendation, [Filing No.
89], in full; and

•

GRANTS DirecTV’s Motion to Dismiss Amended Counterclaim, [Filing No.
68], and DISMISSES WITH PREJUDICE MCI’s breach of contract counterclaim.

As set forth in the Court’s January 7, 2016 Order, the deadline for Defendants to file a Motion for
Summary Judgment, and to file a response to DirecTV’s Motion for Summary Judgment, is 30
days from the date of this Order. [See Filing No. 78; Filing No. 86.] The parties are reminded of
the importance of complying with the Court’s Practices and Procedures, which specifically address
the filing of cross motions for summary judgment, the number of briefs, and the page limits for
each brief. [See Filing No. 6 at 2-3.]

Date: June 3, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

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