Kaplan et al v. Mayo Clinic et al

Filing 279

ORDER overruling attorney James Daniels' 265 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge; affirming Magistrate Judge's 252 Order. (Written Opinion). Signed by Judge John R. Tunheim on February 8, 2013. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ELLIOT KAPLAN and JEANNE KAPLAN,

Civil No. 07-3630 (JRT/JJK)

Plaintiffs,
v.
MAYO CLINIC, MAYO FOUNDATION,
MAYO FOUNDATION FOR MEDICAL
EDUCATION AND RESEARCH, MAYO
ROCHESTER, INC., MAYO CLINIC
ROCHESTER, INC., and LAWRENCE J.
BURGART,

ORDER AFFIRMING
MAGISTRATE JUDGE’S ORDER
AWARDING FEES AND
EXPENSES TO DEFENDANTS

Defendants.

James F. B. Daniels, MCDOWELL, RICE, SMITH & BUCHANAN,
PC, 605 West Forty-Seventh Street, Suite 350, Kansas City, MO 64112;
Nicholas Rowley, CARPENTER ZUCKERMAN & ROWLEY, 8827
West Olympic Boulevard, Los Angeles, CA 90211; Rodney Ritner, LAW
OFFICE OF RODNEY G. RITNER, 421 West Water Street, Floor 3,
Post Office Box 228, Decorah, IA 52101; Thomas J. Ward, WARD &
WARD, PLLC, 2020 N Street N.W., Washington, DC 20036; and
Deborah K. Ellis, ELLIS LAW OFFICE, 101 East Fifth Street, Suite
2626, St. Paul, MN 55101, for plaintiffs.
William R. Stoeri, Heather
DORSEY & WHITNEY
Minneapolis, MN 55402;
LEGAL DEPARTMENT,
55905, for defendants.

M. McCann, and Andrew B. Brantingham,
LLP, 50 South Sixth Street, Suite 1500,
and Joshua B. Murphy, MAYO CLINIC
200 First Street Southwest, Rochester, MN

This is a medical malpractice and breach of contract action that is currently before
the Court on the objection of one of Plaintiffs’ attorneys, James F.B. Daniels, to an order
issued by United States Magistrate Judge Jeffrey J. Keyes during a discovery dispute.

26

After granting Defendants’ Motion to Compel Discovery, the Magistrate Judge issued an
order that “Plaintiffs, their attorneys, or both, shall pay Defendants $1,396.05 for the fees
and expenses incurred in bringing Defendants’ Motion to Compel Discovery.” (Order at
3, Docket No. 250, Dec. 12, 2012; Order at 2, Docket No. 252, Jan. 3, 2013.)
Mr. Daniels objects to the imposition of fees and expenses, asserting that he has
never been “ordered to ‘pay’ anything to anyone and in justice should not be required to
do so now . . . .” (Objection at 2, Docket No. 265, Jan. 17, 2013.) However, another of
Plaintiffs’ attorneys, Rodney Ritner, already sent Defendants’ counsel a check for
$1,396.05 on January 9, 2013, without objection. (Letter to Magistrate Judge, Docket
No. 261, Jan. 9, 2013.) Thus, Mr. Daniels is no longer required to pay the fees and
expenses. Therefore, his objection to such a requirement is moot and the Magistrate
Judge’s order awarding fees and expenses to Defendants is affirmed. See Kennedy Bldg.
Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (“‘[A] case is moot when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.’” (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979))).1

1

Because the objection is moot, the Court will not address Mr. Daniels’ contention that
Defendants’ service of various papers related to the discovery request was improper. Currently
before the Magistrate Judge is Defendants’ related Motion for Sanctions and to Compel
Discovery. (Motion, Jan. 18, 2013, Docket No. 259.) That motion may provide an opportunity
for Mr. Daniels and Defendants’ counsel to resolve that aspect of this dispute. The Court further
notes that Mr. Daniels’ concern over the reputational harm he has allegedly suffered from the
imposition of fees and expenses should be lessened by the fact that Mr. Ritner has seemingly
accepted responsibility for the award by paying it. More importantly, while Mr. Daniels may not
have received the original discovery requests because they were provided to Mr. Ritner,
Mr. Daniels received notice that a motion to compel was filed on November 30, 2012, (Docket
No. 244), and made no response. He also made no response when the Magistrate Judge invited
(Footnote continued on next page.)

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Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs’ objection [Docket No. 265] is OVERRULED as
moot and the Magistrate Judge’s Order dated January 3, 2013 [Docket No. 252] is
AFFIRMED.
DATED: February 8, 2013
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

____________________________________
(Footnote continued.)

plaintiffs to “file a letter . . . setting forth any basis on which they oppose the award” on
December 11, 2012. (Docket No. 250 at 2-3.) Mr. Daniels had ample opportunity to argue that
the fees and expenses should have been levied only against Mr. Ritner before the Magistrate
Judge entered the order. See Ridenour v. Boehringer Ingelheim Pharms., Inc., 679 F.3d 1062,
1067 (8th Cir. 2012) (holding that party is “required to present all of his arguments to the
magistrate judge, lest they be waived”).

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