GOODRICH v. SHEEHAN, ESQ et al

Filing 109

ORDER overruling 101 Objections to Order on Motion for Sanctions. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN GOODRICH, et al.,
Plaintiffs,
v.
MICHAEL L. SHEEHAN, ESQ.,
et al.,
Defendants.

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2:12-cv-00388-JAW

ORDER OVERRULING OBJECTIONS TO
ORDER ON MOTION FOR SANCTIONS
The Court affirms the Magistrate Judge’s award of the Defendants’ attorney’s
fees and costs related to the Plaintiff’s failure to properly and timely designate his
expert witnesses.
I.

BACKGROUND
On December 12, 2012, Stephen Goodrich filed suit against Michael L.

Sheehan and Preti Flaherty Beliveau & Pachios Chartered, LLP (Preti), alleging that
Attorney Sheehan and his law firm, Preti, were negligent in their legal representation
when Mr. Goodrich used their legal services to convert his limited liability company,
PowerPay, LLC, to a “C” corporation. Compl. (ECF No. 1).
On January 9, 2014, in response to a joint motion, Magistrate Judge Rich
amended the scheduling order and, among other things, set March 31, 2014 as the
deadline for the Plaintiff’s expert designation. Order (ECF No. 57). On March 26,
2014, the Plaintiff moved to extend the time for his expert disclosures and, over

objection, the Magistrate Judge granted a further motion to extend the expert
disclosure deadline to May 9, 2014. Pl. Stephen Goodrich’s Mot. to Enlarge the Time
to Designate Expert Witnesses (ECF No. 65); Defs.’ Objection to Pl. Stephen Goodrich’s
Mot. to Enlarge Time to Designate Expert Witness (ECF No. 66); Pl. Stephen
Goodrich’s Reply Mem. in Support of His Mot. to Enlarge the Time to Designate Expert
Witness (ECF No. 67); Report of Hr’g and Order Re: Pl.’s Mot. to Enlarge Deadline
(ECF No. 70).
On May 27, 2014, the Defendants moved for sanctions based on the asserted
failure of the Plaintiff to make the required expert disclosures.

Defs.’ Mot. for

Sanctions (ECF No. 81). Following the Defendants’ motion, on May 30, 3014, the
Plaintiff moved to amend the scheduling order to extend the deadline for filing
supplemental expert disclosures until July 15, 2014. Pl. Stephen Goodrich’s Mot. to
Am. Scheduling Order (ECF No. 83). On June 3, 2014, the Defendants objected to
the motion to amend scheduling order. Defs.’ Objection to Pl.’s Mot. to Amend the
Scheduling Order (ECF No. 84). On the same day, the Plaintiff objected to the
Defendants’ motion for sanctions and appended supplemental expert disclosures to
his objection. Pl. Stephen Goodrich’s Opp’n to Defs.’ Mot. for Sanctions (ECF No. 85).
On June 6, 2014, the Magistrate Judge issued an order, resolving both motions.
Report of Hr’g and Order Re: Mot. for Sanctions, Mot. to Am. Scheduling Order, Disc.
Dispute (ECF No. 87) (First Sanctions Order). The Magistrate Judge in part granted
the Defendants’ motion for sanctions, specifically with respect to the Plaintiff’s May
9, 2010 expert disclosures, but he reserved ruling with respect to the Plaintiff’s June

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3, 2014 supplemental expert disclosures. Id. at 3. Having reviewed the parties’ briefs
and having heard oral argument, the Magistrate Judge concluded that “the May 9
disclosures were inadequate despite several deadline extensions and that, rather
than seeking a further deadline extension on or prior to May 9, the plaintiff had
chosen to file inadequate disclosures, necessitating the defendants’ filing of their
motion for sanctions.” Id. at 3. The Magistrate Judge did not impose the sanction of
witness exclusion under Federal Rule of Civil Procedure 37(c)(1), and instead granted
the Defendants leave to seek from Plaintiff “by way of application to the court[,]
supported by billing records, their reasonable costs and attorney fees incurred in
filing the motion for sanctions.” Id.
In his June 6, 2014 Order, the Magistrate Judge noted that the June 3, 2014
supplemental disclosures contained more detail than the May 9, 2014 disclosures;
yet, he observed that because the Defendants had recently produced a “volume of
documents” to the Plaintiff, he was affording the Plaintiff “one final opportunity to
supplement those disclosures.” Id. The Magistrate Judge therefore reserved ruling
on the June 3, 2014 supplemental disclosures and he set another deadline of June 19,
2014 to allow the Plaintiff to further supplement the disclosures “should he choose to
do so.” Id. He warned the Plaintiff that after June 19, 2014, he would rule on the
adequacy of the expert disclosures and might be “constrained to consider striking
those witnesses.” Id. According to the Magistrate Judge’s August 8, 2014 Order, the
Plaintiff filed additional supplemental expert disclosures on June 19, 2014. Order on
Defs.’ Mot. for Sanctions at 2 (ECF No. 97) (Second Sanctions Order).

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In his August 8, 2014 Order, the Magistrate Judge found that the Plaintiff’s
supplemental disclosures of June 19, 2014 “set forth specific opinions and detail the
bases therefor” and that they satisfied “the disclosure requirements of Federal Rule
of Civil Procedure 26(a)(2)(B).”

Id. at 2, 3.

The Magistrate Judge denied the

Defendants’ motion for sanctions as regards the June 3, 2014 and June 19, 2014
supplemental disclosures.

Id. at 4.

However, the Magistrate Judge imposed a

sanction against the Plaintiff because “[h]ad the plaintiff provided adequate expert
designations by May 9, 2014, this entire motion practice would have been avoided.”
Id.
II.

THE PARTIES’ POSITIONS
A.

The Plaintiff’s Objection

On August 21, 2014, Mr. Goodrich objected to the attorney’s fees award in the
Magistrate Judge’s August 8, 2014 Order. Pl. Stephen Goodrich’s Objection to Order
on Defs.’ Mot. for Sanctions Awarding Defs.’ Their Att’ys’ Fees (ECF No. 101) (Pl.’s
Objection). Mr. Goodrich complains that the order awarding “all fees” is “excessive
and unfair” to the Plaintiff. Id. at 1. He lists three reasons: (1) the Defendants’ “longdelayed release” of records caused the Plaintiff to be unable to comply with the expert
disclosure requirements; (2) the Plaintiff identified his expert witnesses “as far as
practicable under the circumstances” and sought extensions of the disclosure
deadline; and, (3) the Plaintiff’s June 3, 2014 and June 19, 2014 disclosures “satisfied
Rule 26(b)(2)(B).” Id. at 1-2. Boiled down, Mr. Goodrich’s argument is that he did all
he could do to comply with the Court’s scheduling orders only to be frustrated by the

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Defendants’ discovery foot-dragging. Id. at 7. Mr. Goodrich proclaims that he acted
with “the utmost good faith” and there is not “any conceivable” detriment to the
Defendants’ ability to prepare their own case. Id. He points out that the Defendants
failed to comply with the letter of Rule 26(a)(2)(B) and have tried to leave themselves
wiggle room in their own expert disclosures. Id. at 9.
B.

The Defendants’ Response

The Defendants are unmoved. Defs.’ Resp. to Pl.’s Objection to Order on Defs.’
Mot. for Sanctions (ECF No. 105) (Defs.’ Resp.). They first maintain that the Plaintiff
is too late.

Id. at 2-3.

Although they concede that Mr. Goodrich’s objection is

“ostensibly to the August 8, 2014 Order,” they argue that it is really to the June 6,
2014 Order in which the Magistrate Judge ruled that the Defendants were entitled
to their attorney’s fees as a sanction for the Plaintiff’s miscues. Id. The Defendants
urge the Court to conclude that it is too late for the Plaintiff to object to the June 6,
2014 Order. Id. at 3-4.
Turning to the merits of the objection, the Defendants observe that the
standard by which a district judge reviews a non-dispositive order of a magistrate
judge is whether the order is “clearly erroneous or contrary to law.” Id. at 4 (quoting
28 U.S.C. § 636(b)(1)(A)).

They say that Mr. Goodrich has not contested the

Magistrate Judge’s finding that his initial expert disclosures were inadequate. Id.
Instead, they maintain that Mr. Goodrich is claiming the inadequacy was
substantially justified by the Defendants’ control of and refusal to hand over
documents critical to the experts’ ability to formulate their opinions. Id. In response,

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the Defendants mince no words; they say “[t]he argument and its central premise are
both false.” Id. The Defendants contend that as the owner of the business that was
supposedly affected by their legal advice, Mr. Goodrich had “more than enough
documents to permit an expert witness to form and express an opinion within the
deadline.” Id. The Defendants dismiss Mr. Goodrich’s complaints about the breadth
of the documents that were produced, saying that the breadth of the production was
directly related to the breadth of the request. Id. at 7.
III.

DISCUSSION
A.

Legal Standard

The standard by which a district court reviews a non-dispositive order of a
magistrate judge is found in 28 U.S.C. § 636(b)(1)(A): “A judge of the court may
reconsider any pretrial matter under this subparagraph (A) where it has been shown
that the magistrate [judge’s] order is clearly erroneous or contrary to law.” Thus,
“when a magistrate judge decides a non-dispositive motion, the district judge may,
given a timely appeal, set aside the order if it ‘is clearly erroneous or is contrary to
law.’” PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (quoting FED.
R. CIV. P. 72(a)). A district judge reviews a magistrate judge’s factual findings “under
the ‘clearly erroneous’ rubric.” Sheppard v. River Valley Fitness One, L.P., 428 F.3d
1, 6 (1st Cir. 2005). “When . . . review of a non-dispositive motion by a district judge
turns on a pure question of law, that review is plenary under the ‘contrary to law’
branch of the Rule 72(a) standard.” PowerShare, 597 F.3d at 15.

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The First Circuit has also addressed the standards by which a magistrate
judge’s discovery sanction is to be evaluated. “As for the magistrate judge’s decision
itself, ‘we have long recognized that the decision as to whether discovery sanctions
are warranted and the choice of what sanctions should be imposed are matters within
the sound discretion of the trial court. As such, review of . . . discovery sanctions is
only for abuse of discretion.’” Sheppard, 428 F.3d at 6 (quoting United States v. SotoBeniquez, 356 F.3d 1, 30 (1st Cir. 2003)). “An abuse of discretion occurs when a
material factor deserving significant weight is ignored, when an improper factor is
relied upon, or when all proper and no improper factors are assessed, but the court
makes a serious mistake in weighing them.” Id.
Finally, the Magistrate Judge made it clear in his June 6, 2014 Order that the
source of authority for the imposition of an attorney’s fee sanction was Rule
37(c)(1)(A). First Sanctions Order at 3 (citing FED. R. CIV. P. 37(c)(1)(A)).
B.

An Uncertain Request for Relief

In providing the backdrop leading up to the Magistrate Judge’s August 8, 2014
Order, it sometimes seems as if Mr. Goodrich is asking the Court to review the
Magistrate Judge’s June 6, 2014 Order and at other times it seems that he is asking
the Court to review only the August 8, 2014 Order. Despite this ambiguity, the Court
concludes that the nub of Mr. Goodrich’s objection is that in his August 8, 2014 Order,
the Magistrate Judge ordered him to pay “all reasonable attorney fees and costs,”
namely, the attorney’s fees and costs associated not only with the part of the motion
he lost, but also the part he won. Second Sanctions Order at 4.

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To the extent this view of Mr. Goodrich’s more expansive requested relief is
correct, it may be that Mr. Goodrich’s complaints about the June 6, 2014 Order may
not be raised because they are untimely. Rule 72(a) requires that a party objecting
to a non-dispositive order of a magistrate judge must object within 14 days of the
order. FED. R. CIV. P. 72(a). Mr. Goodrich failed to make a timely objection to that
order.

The Magistrate Judge’s June 6, 2014 Order expressly “GRANTED the

defendant’s leave to seek, from the plaintiff by way of an application to the court
supported by billing records, their reasonable costs and attorney fees incurred in
filing the motion for sanctions.” First Sanctions Order at 3. This Order would appear
to trigger the 14-day objection period under Rule 72(a). Nevertheless, rather than
hold Mr. Goodrich to a waiver, the Court will assume that he is challenging both the
first and second orders on the assumption that the second order completed the first
for purposes of the objection period.
C.

Factual Findings

Mr. Goodrich has presented no basis for disturbing the Magistrate Judge’s
factual findings in this case. Mr. Goodrich made his arguments about his asserted
inability to comply with the expert witness disclosure obligations; the Magistrate
Judge considered the underlying facts and found against him. The Court concludes
that the Magistrate Judge’s factual findings were not clearly erroneous and expressly
affirms those findings in both orders.

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D.

Legal Conclusion

Having concluded that Mr. Goodrich failed to make a timely and complete
disclosure of his experts’ opinions, the Magistrate Judge did not err in imposing an
attorney’s fee sanction against Mr. Goodrich for defense counsels’ work leading up to
the June 6, 2014 Order.

Indeed, the Magistrate Judge could have ordered the

requested sanction of witness preclusion but chose the more lenient sanction of
attorney’s fees and costs. Genereux v. Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014)
(“When a party flouts such a deadline, one customary remedy is preclusion.”). At the
same time, the Magistrate Judge acted well within his authority by imposing the
lesser sanction. Garcia-Perez v. Hosp. Metropolitano, 597 F.3d 6 (1st Cir. 2010);
Esposito v. Home Depot U.S.A., 590 F.3d 72, 78 (1st Cir. 2009) (“[T]he district court
was undoubtedly entitled to impose some type of sanction on [plaintiff]. [Plaintiff]
failed to comply with a court-imposed deadline that he himself suggested, and could
not offer a legitimate justification for his noncompliance.”).
The part of the August 8, 2014 Order that bears discussion is that which
requires the Plaintiff to pay the attorney’s fees and costs for the portion of a motion
the Plaintiff won.

In general, Rule 37 differentiates among three results: (1)

attorney’s fees and costs for objecting to a motion that is granted; (2) attorney’s fees
and costs for filing a motion that is denied; and, (3) an apportioned sanction for
motions that are partially denied and partially granted. FED. R. CIV. P. 37(a)(5)(A)(C). The language of Rule 37(c)(1), which addresses a party’s failure to “provide
information or identify a witness as required by Rule 26(a)[,]” does not expressly

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prohibit a court from sanctioning a party who successfully defends against a Rule
26(a) challenge, but it would seem to go without saying. The Defendants clearly “won”
the June 6, 2014 Order, as the Plaintiff’s expert designation was deemed noncompliant, and the Plaintiff may have “won” the August 8, 2014 Order, as his June
19, 2014 designation was deemed adequate. Thus, the two orders of June 6, 2014 and
August 8, 2014 could fit within the partial victory – partial defeat portion of Rule 37
and the sanction could have been apportioned.
Another way to view this dispute, however, is to determine who was the
“overall winner” or “overall loser.” See Caruso v. The Coleman Co., 157 F.R.D. 344,
350 (E.D. Pa. 1994). Here, although the Defendants were not successful in excluding
the Plaintiff’s expert witnesses, they ultimately obtained a Rule 26(a)(2) compliant
disclosure from the Plaintiff, the inadequacy of which triggered their motion to begin
with.
Furthermore, as there was no intervening motion, both the June 6, 2014 and
August 8, 2014 orders flowed from the Defendants’ May 27, 2014 motion for sanctions.
It was the Magistrate Judge’s June 6, 2014 Order that allowed the Plaintiffs to
supplement their designations and it was the Magistrate Judge’s decision to review
the adequacy of those supplemental designations that resulted in the August 8, 2014
Order. There is nothing in the record to indicate that the Defendants filed a new
demand for sanctions after the June 19, 2014 supplemental disclosure and therefore
the decision to review their adequacy was judge-driven, not attorney-driven. Nor
does the record reveal that the adequacy of the June 19, 2014 supplemental

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disclosures was ever briefed by the parties or separately argued to the Court.
Therefore, the Magistrate Judge issued the August 8, 2014 Order in order to finally
resolve the May 27, 2014 motion.1
In sum, although the Magistrate Judge would have been justified in
apportioning the attorney’s fees under Rule 37(a)(5)(C), the Court is not convinced
that the decision to impose a sanction for all the Defendants’ attorney’s fees and costs
traceable to the Plaintiff’s inadequate expert disclosure amounts to an error of law.
Instead, the Plaintiff is protesting his own good fortune: he was allowed until June
19, 2014 to comply with a designation that should have been filed by May 9, 2014.
Furthermore, despite this late designation, he was not subjected to any of the more
onerous sanctions for failure to timely comply with a court order.2 FED. R. CIV. P.
37(c)(1)(A)-(C); (b)(2)(A)(i)(vi). At the same time, the lack of significant docket activity
on this issue between June 6, 2014 and August 8, 2014 must mean that the

The Magistrate Judge could have granted the motion for sanctions on June 6, 2014 and allowed
Mr. Goodrich until June 19, 2014 to supplement his designations, placing the onus on the Defendants
to file another motion if they thought the supplemental designations were inadequate. If the
Magistrate Judge had done so, Mr. Goodrich would have been in an awkward position to challenge the
Magistrate Judge’s decision to award attorney’s fees and costs to the Defendants. Instead the
Magistrate Judge elected to defer final ruling on the May 27, 2014 motion, leaving it pending until
August 8, 2014.
2
The Plaintiff also asserts that his failure to comply with the expert disclosure deadlines was
harmless. Pl.’s Objection at 9 (“Where Plaintiff acted in good faith; Defendants have suffered no
prejudice; trial will not be disrupted; and Plaintiff cured the initial deficiency, monetary sanctions are
not warranted under the circumstances”). The Defendants disagree. Defs.’ Resp. at 7. The Court
agrees with the Defendants. The Plaintiff’s failure to timely comply with the court-ordered expert
disclosures resulted in the filing of motions and objections, telephone conferences with the Magistrate
Judge, the late disclosure of compliant information, and the issuance of two orders from the Magistrate
Judge. The record before the Court does not comport with the examples of harmless discovery lapses
in the advisory committee notes accompanying Rule 37. See FED. R. CIV. P. 37, advisory committee’s
note.
1

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Defendants’ expenditure of time and costs related to the expert designation issue
after June 19, 2014 must be very limited.
IV.

CONCLUSION
The Court OVERRULES the Plaintiff’s Objection to Order on Motion for

Sanctions (ECF No. 101).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2014

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