Advisors Excel, LLC v. American Retirement Systems, LLC

Filing 46

MEMORANDUM AND ORDER denying 33 Motion for Review of Magistrate Judge Sebelius's Order dated 2/13/13. Signed by District Judge Richard D. Rogers on 3/13/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ADVISORS EXCEL, L.L.C.,
Plaintiff,
v.
AMERICAN RETIREMENT SYSTEMS, LLC,
Defendant.

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Case No. 12-4019-RDR

MEMORANDUM AND ORDER
This matter is presently before the court upon defendant=s motion
to review the magistrate=s order of February 4, 2013.

Having

carefully reviewed the arguments of the parties, the court is now
prepared to rule.
Advisors Excel, LLC brings this action asserting various
business torts.
Kansas

The claims arise from an e-mail transmission to one

recipient

by

Russ

Retirement Systems, LLC.

Wagner,

Vice-President

of

American

ARS sought to dismiss plaintiff=s case for

lack of personal jurisdiction.

On December 11, 2012, the court

allowed Advisors Excel forty-five days to conduct limited discovery
on the personal jurisdiction issues raised by ARS=s motion to dismiss.
After the court=s decision, Advisors Excel served a request for
production of documents.
order.

ARS followed with a motion for protective

The magistrate denied ARS=s motion and directed ARS to respond

to Advisors Excel=s request for production.
instant motion.

ARS then filed the

The motion for review is directed at Requests for Production
Nos. 4, 5 and 6 which read as follows:
i. Request No. 4, which seeks AAll documents
pertaining to any e-mail, telephone call, or visit
to any person or entity located in the State of Kansas
from January 2011 through February 2012.@
ii. Request No. 5, which seeks AAll documents pertaining
to ARS=s agents or independent contractors associated with
ARS who conducted any business in the State of Kansas from
January 2011 through February 2012.@
iii. Request No. 6, which seeks AAll documents constituting
or pertaining to solicitations to any person or business
located in the State of Kansas from January 2011 through
February 2012.@
The magistrate found that these requests for production Amay
provide evidence that ARS has purposefully directed its activities
towards the forum state to derive a benefit.@

Thus, the magistrate

concluded that A[b]ecause these requests appear to be relevant for
the personal jurisdiction issues in ARS=s Motion to Dismiss. . ., the
Court in its discretion denies ARS=s Motion for a Protective Order
for Request Nos. 4, 5, and 6.@
ARS argues in the instant motion that the Requests for
Production Nos. 4, 5 and 6 Aclearly fall outside@ the court-approved
discovery sought by the plaintiffs and approved by the court in its
order on the motion to dismiss.

ARS contends that these requests

seek information having nothing to do with (1) whether Wagner
intentionally sent the e-mail into Kansas, (2) whether ARS had
knowledge regarding the sending of the e-mail, and (3) whether ARS
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had other relevant communications with the recipient of the e-mail
in Kansas.
Upon objection to a magistrate judge=s order on a non-dispositive
matter, the district court may modify or set aside any portion of
the order which it finds to be clearly erroneous or contrary to law.
Fed.R.Civ.P. 72(a), 28 U.S.C. ' 636(b)(1)(A). The court does not
conduct a de novo review; rather, it applies a more deferential
standard under which the moving party must show that the magistrate
judge=s order is Aclearly erroneous or contrary to law.@

Fed.R.Civ.P.

72(a); see Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494
(D.Kan. 1997). The court must affirm the magistrate judge's order
unless the entire evidence leaves it A>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 Smith v.
MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D.Kan. 1991)(district court
will generally defer to magistrate judge and overrule only for clear
abuse of discretion).
The court has thoroughly reviewed the arguments of the parties.
The court is not persuaded by the contentions raised by ARS.

The

court believes the magistrate properly exercised his discretion in
determining the discovery that could be sought by Advisors Excel.
As recognized by this court in its order of December 11, 2012,
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Advisors Excel is entitled to Asome latitude@ in obtaining personal
jurisdiction information from ARS.

The court believes that the

efforts of Advisors Excel in its requests for production sufficiently
complied with the court=s order of December 11, 2012.

Discovery

regarding ARS=s activities toward Kansas within a limited time frame
prior to the e-mail in question may provide ARS=s motivation and intent
in sending the e-mail.

Accordingly, defendant=s motion for review

shall be denied.
IT IS THEREFORE ORDERED that defendant=s motion to review
Magistrate Sebelius=s order of February 13, 2013 (Doc. # 33) be hereby
denied.
IT IS SO ORDERED.
Dated this 13th day of March, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

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