Sanderford v. Malley

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 31 Motion to Dismiss filed by Kimberly Dee Sanderford, this case is hereby dismissed with prejudice. 30 Motion for Approval of Settlement is hereby denied inpart and granted in part. The court shall deny plaintiff's request that the court approve the settlement agreement. The court shall grant the parties' request to approve their respective attorney fees. filed by Kimberly Dee Sanderford, 35 Report and Recommendations. Signed by District Judge Richard D. Rogers on 3/27/15. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KIMBERLY DEE SANDERFORD,
Plaintiff,
v.
Case No. 14-2165-RDR-KGS
STEPHEN MALLEY, M.D.,
Defendant.

ORDER
This matter is presently before the court upon the Report
and Recommendation issued by Magistrate Judge K. Gary Sebelius
on March 16, 2015.

The court had referred plaintiff’s motion

for approval of settlement to Judge Sebelius for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P.
72.

In his Report and Recommendation, Judge Sebelius concluded

that plaintiff’s motion should be granted in part and denied in
part.

He recommended that plaintiff’s request to approve the

settlement
recommended

agreement
that

in

this

plaintiff’s

case

be

request

respective attorney fees be granted.
that

she

has

recommendations

no
of

objections
Judge

to

the

Sebelius.

denied.

to

approve

He
the

further
parties’

Plaintiff has indicated
proposed
The

findings

defendant

has

and
no

objections to the conclusions reached by Judge Sebelius buts
objects to the court adopting the order in its entirety because

it

contains

confidential

business

information

pertaining

to

defense counsel’s billing rates.
Upon objection to a magistrate judge’s order on a nondispositive matter, the district court may modify or set aside
any portion of the order which it finds to be clearly erroneous
or

contrary

to

636(b)(1)(A).

law.

Fed.R.Civ.P.

72(a);

28

U.S.C.

§

With regard to fact findings, the court applies a

deferential standard which requires the moving party to show
that the magistrate judge order is clearly erroneous. See Burton
v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D.Kan. 1997).
Under

this

magistrate

standard,
judge

the

order

court

unless

is

the

required

entire

to

affirm

evidence

leaves

the
it

“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)(quoting United States v. U.S. Gypsum Co.,
333

U.S.

364,

395

(1948));

see

also

Smith

v.

MCI

Telecomm.

Corp., 137 F.R.D. 25, 27 (D.Kan. 1991)(district court generally
defers to magistrate judge and overrules only for clear abuse of
discretion).
With

regard

to

legal

matters,

the

court

conducts

an

independent review and determines whether the magistrate judge
ruling is contrary to law. See Sprint Commc’ns Co. v. Vonage
Holdings Corp., 500 F.Supp.2d 1290, 1347 (D.Kan. 2007). Under
this standard, the court conducts a plenary review and may set
2 

aside the magistrate judge decision if it applied an incorrect
legal

standard

or

failed

applicable standard.

to

consider

an

element

of

the

See, e.g., McCormick v. City of Lawrence,

Kan., No. 02–2135–JWL, 2005 WL 1606595, at *2 (D.Kan. July 8,
2005).
Here,

the

defendant

has

failed

authority for its objection.

to

provide

any

legal

After careful review of Judge

Sebelius’ Report and Recommendation, the court does not find any
aspect of that decision is clearly erroneous or contrary to law.
Accordingly, the court shall deny defendant’s objection.
The court adopts Judge Sebelius’ Report and Recommendation
in its entirety.

Plaintiff’s motion for approval of settlement

shall be denied in part and granted in part.

The court shall

deny plaintiff’s request that the court approve the settlement
agreement.

The

court

shall

grant

the

parties’

request

to

approve their respective attorney fees under K.S.A. 7-121b(a).
IT IS THEREFORE ORDERED that the magistrate judge’s Report
and Recommendation of March 16, 2015 be hereby accepted and
adopted.

Plaintiff’s motion for approval of settlement (Doc. #

30) is hereby denied in part and granted in part.
shall

deny

settlement

plaintiff’s
agreement.

request
The

that

court

the

shall

court
grant

request to approve their respective attorney fees.

3 

The court
approve

the

the

parties’

IT IS FURTHER ORDERED that this case be hereby dismissed
with prejudice.
IT IS SO ORDERED.
Dated this 27th day of March, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

4