SHUPER v. AUSTIN

Filing 37

ORDER denying 35 Appeal from Magistrate Judge Decision to District Court; denying 36 Appeal from Magistrate Judge Decision to District Court. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALLA IOSIFOVNA SHUPER,
Plaintiff,
v.
DAN AUSTIN,
Defendant.

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2:14-cv-00317-JAW

ORDER DENYING APPEALS
On August 11, 2014, Alla Iosifovna Shuper filed a complaint with ten exhibits
in this Court against Dan Austin, a police officer with the Falmouth, Maine Police
Department, alleging that he committed certain acts of discrimination against her.
Compl. (ECF No. 1). On August 20, 2014, Ms. Shuper filed a motion to amend her
Complaint to add an exhibit. Mot. to Amend Compl. (ECF No. 10). On August 22,
2014, the Magistrate Judge granted this motion to amend complaint. Order Granting
Mot. to Amend Compl. (ECF No. 11). Ms. Shuper filed an amended complaint on
August 24, 2014. Am. Compl. (ECF No. 12).
On August 26, 2014, Ms. Shuper filed another motion to amend complaint to
add two additional exhibits. Mot. to Amend Am. Compl. (ECF No. 13). On August
27, 2014, the Magistrate Judge granted that motion as well. Order Granting Mot. to
Amend (ECF No. 14). Ms. Shuper filed the second amended complaint and additional
exhibits on August 27, 2014. Second Am. Compl. (ECF No. 15); Additional Exs. (ECF

No. 16). She filed additional exhibits on August 28 and August 29, 2014. (ECF No.
17 and 20).
On September 3, 2014, Ms. Shuper filed a motion to amend the second
amended complaint. Mot. to Amend the Second Am. Compl. (ECF No. 21). On
September 4, 2014, the Magistrate Judge granted that motion. Order Granting Mot.
to Amend the Second Am. Compl. (ECF No. 22). He ruled that the “controlling
pleading shall be Plaintiff’s Second Amended Complaint and the exhibits referenced
in [her motion to amend the second amended complaint].” Id. On September 11,
2014, acting through counsel, Defendant Dan Austin filed a waiver of service. Waiver
of Serv. of Summons (ECF No. 23).
On September 23, 2014, Ms. Shuper filed a motion to clarify the status of the
case and attached eight exhibits. The Mot. to Clarify the Status of the Opened Case
(Continuation) (ECF No. 25). The motion read:
As was described in my previous document mailed from the crises
stabilization unit (where I still am) I am filing the exhibits 8 through 14
& exhibit 15.
Please, I ask the federal court judge to consider as granting the motions
I filed.
Id. at 1. On September 24, 2014, the Magistrate Judge struck the motion to clarify
because he could not “determine the nature of the relief requested.” Order Striking
Mot. to Clarify Status of the Opened Case (ECF No. 26).
On September 24, 2014, Ms. Shuper filed three motions: (1) a motion to extend
time; (2) a motion to clarify status of documents; and (3) a motion to amend the second
amended complaint. Turning to the first motion, she filed a motion to extend time to
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file a motion to clarify the status of the current open case. The Mot. to Extend a Time
to File the Mot. to Clarify the Status of the Current Open Case (Until Oct. 10 th) (ECF
No. 27). On the same day, she filed a motion to clarify the status of documents, The
Mot. to Clarify the Status of the Docs. Prepared as a Copy of the Compl. Handled by
the Me. Human Rights Comm’n (MHRC) (ECF No. 28), and a motion to amend the
second amended complaint. The Second Mot. to Amend the Second Am. Compl. with
the Exs 8, 9, 10, 11, 12, 13, 14, and Ex. 15 (ECF No. 31).
On September 25, 2014, the Magistrate Judge denied the motion to extend on
the ground that there was no reason to file a motion to clarify and therefore no reason
to extend the time to file such a motion. Order Denying Mot. to Extend Time to File
Mot. to Clarify (ECF No. 29). On the same day, he also denied the motion to clarify
the status of documents, because “there is no reason for Plaintiff to file any exhibits”
at this stage in the case. Order Denying Mot. to Clarify the Status of Docs. (ECF No.
30). Finally, on September 26, 2014, the Magistrate Judge denied the motion to
amend the second amended complaint because he concluded that the amendment
would not “materially alter the substance of Plaintiff’s claim”, because he had already
permitted Ms. Shuper more than one amendment, which included the filing of
additional exhibits, and because further amendment was not necessary.

Order

Denying Mot. to Amend Second Am. Compl. With Exs. 8-15 (ECF No. 33).
On September 25, 2014, Ms. Shuper filed another motion to clarify the status
of the case. The Mot. to Clarify the Status of the Current Opened Case (ECF No. 32)
(Mot. to Clarify). On September 26, 2014, the Magistrate Judge denied the motion to

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clarify, noting that at this stage in the proceedings, there are “no issues to clarify”
and “no discovery issues to address.” Order Denying Mot. to Clarify Status of the Case
(ECF No. 34). The Magistrate Judge noted that upon the filing of a responsive
pleading by the Defendant, the Court would issue a scheduling order or schedule
further proceedings. Id.
On September 28, 2014, Ms. Shuper has appealed both the Magistrate Judge’s
order on the motion to amend and his order on the motion to clarify status. The
Appeal to the Order 33 in regards to the Second Mot. to Amend the Second Am. Compl.
With the Exs. 8, 9, 10, 11, 12, 13, 14, and Ex. 15 (ECF No. 35); Appeal to the Order 34
Denying my Mot. – Req. 32 for Subpoena to Verizon and Time Warner Cable (ECF No.
36).
Both of these Magistrate Judge Orders are on non-dispositive matters. 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

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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.
The Court denies Ms. Shuper’s appeals. First, as regards the order denying
the motion to amend the complaint, the Magistrate Judge has already granted three
motions to amend the complaint. Officer Austin has not as yet answered the Second
Amended Complaint, which is now the operative pleading and it seems appropriate
to allow a period of pleading amendment quiescence to allow the Defendant to review
the operative pleading and answer it. Otherwise, the Defendant will face a moving
target just to file his responsive pleading. The Magistrate Judge’s order does not
imply that Ms. Shuper will be forbidden ever from further amending her Second
Amended Complaint. But Ms. Shuper should be aware, as the Magistrate Judge
noted, that it is not necessary to attach all relevant exhibits to a complaint.
Next, as regards the motion to clarify the status of the case, Ms. Shuper filed
a motion to clarify the status of the current opened case on September 25, 2014. In
reviewing this motion, Ms. Shuper asked that this Court authorize subpoenas to
Verizon and Time Warner. Mot. to Clarify at 1-3. She has reiterated this request in
her appeal. Notice of Appeal at 1-3. Again, until Defendant Austin answers the
Second Amended Complaint, the Magistrate Judge was wise to defer any discovery
disputes between the parties, including subpoenas to third parties.
The Magistrate Judge’s orders do not imply that Ms. Shuper will be forbidden
ever from further amending her Second Amended Complaint. But Ms. Shuper should
be aware, as the Magistrate Judge noted, that it is not necessary to attach all relevant

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exhibits to a complaint. Nor does the Magistrate Judge’s order imply that she will
not be allowed to subpoena third party records, only that Officer Austin should be
formally part of this litigation before she starts discovery.
The Court DENIES The Appeal to the Order 33 in regards to the Second
Motion to Amend the Second Amended Complaint with the Exhibits. 8, 9, 10, 11, 12,
13, 14, and Ex. 15 (ECF No. 35) and DENIES Appeal to the Order 34 Denying my
Motion – Request 32 for Subpoena to Verizon and Time Warner Cable (ECF No. 36).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 6th day of October, 2014

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