Lee et al v. Pearl River Basin Land and Development Company, LLC et al

Filing 73

ORDER and REASONS denying 57 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court and the magistrate judge's 3/14/2014 Order is AFFIRMED. FURTHER ORDER that, not later than 5/7/2014, counsel for plaintiffs must certify in the record that they have provided their clients a copy of this Order and Reasons. Signed by Judge Martin L.C. Feldman on 4/30/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER ELIZABETH LEE,
wife of and CRAIG LEE

CIVIL ACTION

v.

NO. 13-0590

PEARL RIVER BASIN LAND
AND DEVELOPMENT COMPANY, LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiffs' "motion for appeal/review
of

magistrate's

order

denying

plaintiffs'

motion

to

quash

deposition and request for de novo review of said motion." For the
reasons that follow, the motion is DENIED and the magistrate
judge's March 14, 2014 Order is AFFIRMED.
Background
This lawsuit arises from personal injuries allegedly sustained
when the plaintiff, while operating his skiff on a tributary of the
Pearl River in St. Tammany Parish, struck an unmarked and unlit
structure.
Craig Lee alleges that he was seriously injured on April 1,
2012 when the vessel he was operating allided with unlit and
unmarked
waterway.

support

pilings

to

a

bridge

constructed

across

the

On April 1, 2013 Lee and his wife sued Pearl River Basin

Land and Development Company, LLC (PRBL), the Town of Pearl River,
the State of Louisiana, and three fictitious insurers in state
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court.

Later that same day, the Lees sued PRBL, the Town of Pearl

River, and the three fictitious insurers in this Court.

The Lees

allege PRBL's negligence in failing to adequately mark the support
pilings caused Mr. Lee's injuries; they allege that the State of
Louisiana

(named

as

a

defendant

only

in

the

state

court

proceedings) owned the water bottom/bed of the "pump slew", a
navigable body of water; and they allege that the Town of Pearl
River owned or maintained the property on which the bridge is
attached and breached its duty to insure that it was not hazardous.
Plaintiffs seek to recover an estimated $2,000,000 in damages for
Mr. Lee's physical and mental injuries, as well as Mrs. Lee's loss
of consortium.
The Town of Pearl River answered in this federal litigation on
June 19, 2013, and PRBL filed its answer and amended answer in
October 2013.

Counsel participated in a scheduling conference,

after which time the Court issued a scheduling order, selecting the
pretrial conference date (July 24, 2014), the jury trial date
(August 25, 2014), and corresponding deadlines for discovery and
motion practice.
On December 18, 2013 PRBL filed a motion to compel discovery,
which was granted on January 13, 2014.

In granting the motion to

compel, Magistrate Judge Roby also ordered that an award of
reasonable expenses, including attorney's fees be awarded against
plaintiffs in PRBL's favor pursuant to Federal Rule of Civil

2

Procedure 37(a)(5)(A). Magistrate Judge Roby ultimately determined
that

$697.50

in

fees

was

reasonable,

and

ordered

that

the

plaintiffs satisfy the obligation to pay PRBL not later than 20
days from her February 11, 2014 order.

Although the January 13

order required plaintiffs to provide complete responses to PRBL's
discovery within 10 days from the order, the plaintiffs still have
not responded to the discovery.
On February 18, 2014, the Town of Pearl River filed a motion
for summary judgment and a request for oral argument on its motion,
noticing the motion for submission on March 26, 2014.

PRBL has

noticed the plaintiffs' depositions four times but, each time,
plaintiffs' counsel has advised that plaintiffs were unavailable,
even when plaintiffs' counsel had previously agreed to the date. On
March

10,

2014,

for

example,

less

than

48

hours

before

the

plaintiffs' depositions were to be taken, plaintiffs filed a motion
to quash the depositions based on plaintiffs' intent to seek
voluntary dismissal; after granting the defendants' motion to
expedite hearing on the motion to quash, Magistrate Judge Roby
denied the motion.

Shortly after requesting to quash their

depositions on March 10, the plaintiffs filed a motion to dismiss
without prejudice so that plaintiffs could proceed only with their
state court lawsuit.

On April 2, 2014 the Court denied the

plaintiffs' motion, observing:

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The plaintiffs' request to dismiss their lawsuit is,
at best, dilatory. It is presented more than 11 months
after the lawsuit was filed. The request comes after the
defendants have answered; after counsel participated in
a scheduling conference and a scheduling order issued;
after a motion to compel was decided adversely to
plaintiffs and plaintiffs were taxed attorney's fees;
after a dispositive motion for summary judgment and
accompanying request for oral argument was filed; and
after the plaintiffs have persistently obstructed
discovery efforts initiated by defendants, including by
filing a motion to quash, which was decided adversely to
plaintiffs. Plaintiffs cannot simply file a lawsuit in
federal court, sit back and refuse to advance the case,
and be granted an unconditional without prejudice
dismissal with a dispositive motion scheduled for hearing
and the trial date five months away.
See Order and Reasons dated April 2, 2014. Meanwhile, on March 14,
2014, the magistrate judge had denied the plaintiffs' request that
their depositions be quashed.

The plaintiffs now appeal the

magistrate judge's order denying their motion to quash.
I.
A.
A

magistrate

judge

is

afforded

broad

discretion

in

the

resolution of non-dispositive discovery disputes. See Fed.R.Civ.P.
72(a); see also 28 U.S.C. § 636(b)(1)(A).

If a party objects to a

magistrate judge’s ruling on a non-dispositive matter, the Court
will disturb a magistrate’s ruling only when the ruling is “clearly
erroneous or is contrary to law.” See Fed.R.Civ.P. 72(a); see also
Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995).

A finding is

"clearly erroneous" when the reviewing Court is "left with the
definite and firm conviction that a mistake has been committed."
United States v. Stevens, 487 F.3d 232, 240 (5th Cir. 2008)(quoting
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United States. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
B.
Magistrate Judge Roby denied the plaintiffs' motion to quash
the plaintiffs' depositions on the ground that a request pursuant
to Rule 26(c) to support issuance of a protective order to prevent
or postpone a deposition requires that good cause be shown, and the
plaintiffs failed to establish good cause.
14, 2014.

See Order dated March

Magistrate Judge Roby's Order is amply supported, and

the plaintiffs identify no particular error.

The Court finds that

the plaintiffs have failed to show how the magistrate judge's
ruling is clearly erroneous or contrary to law.
In their papers appealing the magistrate judge's March 14,
2014 Order, the plaintiffs (invoking no law whatsoever) advance
various excuses concerning why the plaintiffs' depositions have
been rescheduled so many times, and urge that the magistrate judge
disregarded their argument that the depositions should be conducted
in the state court suit (or at least cross-noticed to include the
state court suit), where the State is also a party.

Moreover, the

plaintiffs submit, if their motion to quash is to be denied, "then
a conditional stay of the depositions should be required pending a
ruling on the [plaintiffs'] motion to dismiss."

Not only do

plaintiffs' excuses lack any connection whatsoever to an attempt to
show that Magistrate Judge Roby clearly erred in denying their

5

motion to quash,1 but, even more troubling, is the fact that
counsel submits stale grounds for appeal that moot the frivolous
arguments advance.

This Court denied the plaintiffs' motion for

voluntary dismissal before the plaintiffs filed the present motion
for appeal/review of magistrate judge's order, yet the plaintiffs
continue to invoke the possibility that the Court might dismiss
this federal lawsuit as grounds for reversing the magistrate
judge's

refusal

to

quash

plaintiffs'

depositions;

plaintiffs

continue to suggest that the motion to dismiss is still pending.
It is not.

The Court denied the motion to dismiss five days before

the plaintiffs filed the present appeal.

The Court admonishes

counsel for their inattention and for wasting the Court's time.
The Court cautions plaintiffs, again, as it did in its April 2,
2014 Order and Reasons denying their motion to dismiss:
If the plaintiffs' pattern of delay persists, the Court
will entertain a motion to dismiss the case with
prejudice as a sanction, and, given the state of the
record, the Court will be obliged to look into the
applicability of 28 U.S.C. § 1927 as to plaintiffs and
counsel.
IT IS ORDERED: that the plaintiffs' motion for appeal/review
of the magistrate judge's order denying the plaintiffs' motion to
quash is DENIED; the magistrate judge's March 14, 2014 ruling is
AFFIRMED. IT IS FURTHER ORDERED: that, not later than May 7, 2014,

1

The plaintiffs fail to explain why their depositions
cannot simply be noticed in the state court, as well, as defendants
have previously suggested.
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counsel for plaintiffs must certify in the record that they have
provided their clients a copy of this Order and Reasons.
New Orleans, Louisiana, April 30, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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