Bledsoe et al v. FCA US LLC et al

Filing 258

ORDER Appointing Special Master. Signed by District Judge Terrence G. Berg. (Attachments: # 1 Exhibit Declaration of Todd R. Mendel) (AChu)

Case 4:16-cv-14024-TGB-RSW ECF No. 258, PageID.36317 Filed 08/02/22 Page 1 of 14

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES BLEDSOE, et al., on
behalf of themselves and all others
similarly situated,
Plaintiffs,

4:16-CV-14024-TGB-RSW
ORDER APPOINTING SPECIAL
MASTER

v.
FCA US LLC, a Delaware
corporation, and CUMMINS INC.,
an Indiana corporation,
Defendants.
At a status conference on July 6, 2022, the Court notified the parties
that it intended to appoint a Special Master in this case, pursuant to Fed.
R. Civ. P. 53. On July 11, 2022, the Court gave the parties written notice
of its intent to appoint Todd R. Mendel as the Special Master, pursuant
to Fed. R. Civ. P. 53(b)(1). (ECF NO. 249, PageID.34865-4866). The
parties’ objections to or alternative suggestions for a Special Master were
due on July 18, 2022. (Id. at PageID.34866). Defendants timely filed an
objection to the appointment of a Special Master. (ECF NO. 254). The
basis of the objection is that defendants believe that the appointment of

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a Special Master is unnecessary at this stage in the litigation.
Defendants’ objection is overruled.
As an initial matter, this case has been pending for almost six years.
It is highly complex, as defendants themselves acknowledge in their
objection (ECF NO. 254, PageID.34959). The docket contains more than
250 entries already. Extensive summary judgment and Daubert motions
are pending.

Depending on the outcome of the summary judgment

motions, class certification briefing and further pretrial activities may
also be on the horizon.
Defendants offer their speculation that the pending summary
judgment motions may lead to a quick conclusion for the case. If not,
defendants suggest that the Daubert motions and class certification
rulings will be better handled by the Court without a Special Master,
because the Court has a history with the case and is in the best position
to rule on such motions.
While the disposition of these motions is far from clear at this point,
their complexity is evident and substantial. The Court would be best
served by appointing a Special Master now to assist with those motions,
at the Court’s direction. Based on the Court’s familiarity with the case
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and counsel, the Court concludes that a Special Master will be helpful if
the case moves forward, particularly in assisting with matters relating
to a final pretrial order, preparation for trial, and even mediation or
settlement. It is the Court’s judgment that for this case to be effectively
and timely addressed, a Special Master needs to be appointed at this time
under Fed. R. Civ. P. 53(a)(1)(C).
Defendants’ objection indicates that they believe the Court will not
rule on the various motions, and that the Special Master will rule on
them instead. That is incorrect. The Court will be deciding and ruling
upon the motions. The Court will decide the role of the Special Master
with respect to the motions and other matters in the case, and the Court
will determine how best to direct the Special Master to assist the Court.
The Court is not ceding its authority or decision-making to the Special
Master.
With respect to any mediation and settlement-related roles in
which the Special Master may become involved, defendants’ objection
states that the parties can jointly select their own mediator by agreement
if mediation becomes necessary, as they have in a separate case.
Whether the parties ultimately choose their own mediator or not, it will
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be helpful to the Court to have a Special Master available to conduct
mediation and settlement efforts as may be needed.
Defendants believe that there will be little need for the Special
Master to address discovery issues as the parties have generally worked
cooperatively on discovery over the six-year history of the litigation. The
Special Master will be authorized to address discovery matters as
needed.

If there are discovery matters to be addressed, the Special

Master will be in a position to do so. If there are not, appointing a Special
Master does not prejudice or harm any party.
In contrast to defendants, plaintiffs do not object to the
appointment of a Special Master. Plaintiffs defer to the Court’s discretion
on the appointment and scope of the Special Master’s assignment,
including assisting the Court on motions, mediation, and settlement.
(ECF No. 254-1).
While defendants objected to the appointment of a Special Master,
they did not object to Todd R. Mendel being appointed if the Court
appoints a Special Master. Nor did plaintiffs make any such objection.
Nor did any party propose any alternative individuals to be appointed as

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the Special Master.

Having reviewed defendants’ objection, it is

overruled for the above reasons.
Appointment of Special Master
Pursuant to Fed. R. Civ. P. 53, the Court hereby appoints Todd R.
Mendel as the Special Master with authority over the areas set forth
below. The Special Master’s contact information is:
Todd R. Mendel
Phone [phone]
[e-mail]
Basis for Appointment
The Special Master is hereby appointed pursuant to Fed. R. Civ. P.
53(a)(1)(C) to address pretrial matters that cannot be addressed
effectively and timely by an available district judge or magistrate judge
of the district.
No Grounds for Disqualification
Pursuant to Fed. R. Civ. P. 53(a)(2) and 53(b)(3), the Special Master
has submitted the attached declaration to the Court stating that he has
no relationship to the parties, counsel, action, or Court that would require
disqualification of a judge under 28 U.S.C. § 455. During the course of
these proceedings, the Special Master and the parties will notify the

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Court immediately if they become aware of any potential grounds that
would require disqualification.
Fairness Considerations
Pursuant to Fed. R. Civ. P. 53(a)(3), the Court has considered the
fairness of imposing the likely expenses of the Special Master on the
parties. The Court believes that the appointment and use of the Special
Master will materially advance the litigation, thereby achieving
considerable cost-savings to all parties. The Court will protect against
unreasonable expenses and delay through regular communication with
the Special Master and the parties’ counsel.
Proper Notice Given to All Parties
Pursuant to Fed. R. Civ. P. 53(b)(1) and the Court’s July 11, 2022
order, the Court gave all parties to these proceedings notice of its intent
to appoint the Special Master and an opportunity to be heard with
respect to such an appointment before issuing this order. As explained
above, the Court has reviewed the only submission made by the parties—
the defendants’ objection—which has been overruled.
accordingly appointing the Special Master.

6

The Court is

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Special Master’s Duties, Authority, and Compensation
Diligence
Pursuant to Fed. R. Civ. P. 53(b)(2), the Court directs the Special
Master to proceed with all reasonable diligence in performing his duties
in these proceedings.
Scope of Duties
Pursuant to Fed. R. Civ. P. 53(b)(2)(A), the Special Master will at
the Court’s direction:
1. Assist the Court and the parties with case management issues,
including communicating with the parties and/or the Court to
foster efficient case management and administration.
2. Assist the Court with all substantive and procedural aspects of
motions and submissions filed by the parties, as determined by
the Court so that the Court can effectively and timely address
them.
3. Assist and advise the Court regarding any pretrial matters and
motions, as determined by the Court so that the Court can
effectively and timely address them.
4. Assist the Court and the parties with discovery matters, as
needed and designated by the Court.
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5. Issue reports and recommendations on any pretrial matters, as
may be determined and requested by the Court.

While the

Special Master will have the authority to issue reports and
recommendations, he will only be required to do so upon the
Court’s specific request for a formal report and recommendation.
Otherwise, the Special Master will assist the Court informally
as determined by the Court.
6. Communicate with the Court and/or the parties’ attorneys as
necessary in order to permit the full and efficient performance of
the Special Master’s duties.
7. Conduct mediation and settlement efforts, as needed.
8. Conduct other duties as may be specified in subsequent orders.
The Special Master will have the authority to set the date, time and
place for all hearings, to preside over hearings, to take evidence, to
conduct telephonic conferences to resolve disputes arising during
depositions, and to issue orders awarding non-contempt sanctions,
including, without limitation, the award of attorneys’ fees, as provided by
Fed. R. Civ. P. 37 and 45. The Special Master is authorized to receive and
consider information designated as confidential pursuant to any
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protective order entered in this matter, and may review privileged
materials in camera and sealed materials. The Special Master has agreed
to be bound by any protective orders entered in this case. The Special
Master is authorized to retain independent auditors, accountants,
attorneys, and clerical assistants or other necessary personnel to assist
him with any of the above duties.
Scope of Authority
The Special Master will have the authority provided in Fed. R. Civ.
P. 53(c).
Procedure for Motions Submitted to the Special Master
The procedural requirements contained in this Court’s pretrial
orders will govern any motion practice before the Special Master unless
he orders otherwise.
Ex Parte Communications
Pursuant to Fed. R. Civ. P. 53(b)(2)(B), the Special Master may
communicate ex parte with the Court at any time. Generally, the Special
Master will not communicate ex parte with any party without first
providing notice to, and receiving consent from that party’s counsel.
However, in order to facilitate the fair and effective performance of his
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duties as outlined in this order and as assigned by the Court, the
Special Master may communicate ex parte with counsel for the parties.
Preservation of Materials and Preparation of Record
Pursuant to Fed. R. Civ. P. 53(b)(2)(C), the Special Master will
maintain files consisting of all documents submitted to him by the parties
and

of

any

of

his

formal

written

orders,

findings,

and/or

recommendations. Pursuant to Fed. R. Civ. P. 53(d) and (e), the Special
Master will file any formal written orders, findings, recommendations
and reports with the Court via the Court’s Electronic Case Filing (“ECF”)
system. Such filing will fulfill the Special Master’s duty to serve his
orders on the parties.
Compensation
Pursuant to Fed. R. Civ. P. 53(f), the Special Master will be
compensated at an hourly rate of $475 for his services as Special Master,
and will be reimbursed for any out-of-pocket expenses (e.g., costs of
accountants, auditors, and clerical or other necessary personnel). The
Special Master may also utilize and charge for services of attorneys and
paralegals in his law firm at lower hourly rates than his to assist him
with any of the Special Master’s duties. The Special Master may be
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reimbursed for travel expenses, but will not charge for travel time. The
Special Master will prepare a monthly invoice for his services, expenses,
and costs, which he will provide to counsel for the plaintiffs and counsel
for defendants.
Counsel for plaintiffs will promptly and timely pay one-half of all
hourly rates, expenses, and costs of the Special Master. Defense counsel
will also promptly and timely pay one-half of all hourly rates, expenses,
and costs of the Special Master to be divided between the two defendants
equally. Payments shall be made by plaintiffs’ counsel and defendants’
counsel directly to the Special Master and not to the Court. Any disputes
regarding compensation, costs and expenses of the Special Master, or the
allocation of payment of such fees and costs among the parties, will be
brought to the Court’s attention.
Reports to Court
Pursuant to Fed. R. Civ. P. 53(e), the Special Master will, if
requested by the Court, issue formal orders on motions presented to him
which will be final and not require the Court’s signature, subject to the
parties’ right to file objections as described below. Further, if the Court
requests, the Special Master will prepare formal reports and issue formal
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recommendations to the Court on the subjects covered by this
appointment. If the Special Master considers it advisable to make any
other report to the Court, he will do so in accordance with Fed. R. Civ. P.
53(e) and (f).
Action on Special Master’s Orders, Reports, or Recommendations
Scope of Section
Pursuant to Fed. R. Civ. P. 53(f), the procedures described below
will govern any action on the Special Master’s formal orders, reports
and/or recommendations.
Time Limits for Review
Any party wishing to file objections to or a motion to adopt or modify
the Special Master’s formal orders, reports, and/or recommendations must
file such objections or motion with the Court within 14 days from the day
the Special Master filed such order, report, and/or recommendation via
ECF. Any order issued by the Special Master will remain in effect pending
any such objection or motion. Any opposition will be filed within 7 days
after the objection or the motion is filed.

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Filing the Record for Review
In responding to any report and recommendation that the
Special Master may be authorized to enter,

an objection or

motion shall be filed together with any supporting materials necessary
to permit the Court to review the Special Master’s formal order, report,
and/or recommendation. Such materials will include any transcripts of
proceedings before the Special Master and any documents submitted by
the parties in connection with the Special Master’s formal order, report,
and/or recommendation. Failure to provide the record will constitute
grounds for the Court to overrule the objection or deny the motion.
Standard for the Court’s Review
Pursuant to Fed. R. Civ. P. 53(f)(3)-(5), the Court will review
findings of fact made or recommended by the Special Master de novo. The
Court will review de novo any conclusions of law made or recommended
by the Special Master. The Court will set aside the Special Master’s ruling
on a procedural matter only for an abuse of discretion.
Court’s Actions on Special Master’s Orders
Pursuant to Fed. R. Civ. P. 53(f)(1), in acting on a formal order,
report or recommendation of the Special Master, the Court will afford the
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parties an opportunity to present their positions and, in its discretion,
may receive evidence, and may adopt or affirm, modify, wholly or partly
reject or reverse, or resubmit the matter to the Special Master with
instructions, or make any further orders the Court deems appropriate.
IT IS SO ORDERED.
Dated: August 2, 2022

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and
the parties and/or counsel of record were served on August 2,
2022.
s/A. Chubb
Case Manager

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