O'Donnell et al v. Lakes State Bank et al

Filing 174

ORDER. IT IS HEREBY ORDERED that: 1. United States Magistrate Judge Leo I. Brisbois' November 21, 2011 Order 146 is AFFIRMED. 2. Defendant's appeal of that order 154 is DENIED. (Written Opinion). Signed by Chief Judge Michael J. Davis on 2/13/12. (GRR) cc: Richard A. O'Donnell. Modified on 2/13/2012 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

RICHARD A. O’DONNELL,
Plaintiff,

v.

ORDER
Civil File No. 10-2523 (MJD/LIB)

LAKES STATE BANK, et al.,
Defendants.
Richard A. O’Donnell, pro se.
Joseph J. Cassioppi and David R. Marshall, Fredrikson & Byron, PA, Counsel for
Defendants.
The above-entitled matter comes before the Court on Plaintiff Richard A.
O’Donnell’s appeal of Magistrate Judge Leo I. Brisbois’ November 21, 2011 Order
denying with prejudice Plaintiff’s motions to compel certain documents from the
FDIC pursuant to a subpoena duces tecum.
Plaintiff’s appeal was filed with this Court long after the deadline set by
Local Rule 72.2(a). Plaintiff asserts that he mistakenly filed his timely appeal
with the Eighth Circuit Court of Appeals instead of with this Court. This Court
has discretion to hear an untimely appeal of a magistrate judge’s order. See
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United States v. Meyer, 439 F.3d 855, 858 (8th Cir. 2006). In this instance, based
on Plaintiff’s attempt to file a timely appeal, albeit in the wrong court, the Court
exercises its discretion to review Plaintiff’s appeal on the merits. However, the
Court warns Plaintiff that future failures to follow the Local Rules are unlikely to
be excused.
This Court will reverse a magistrate judge’s order on a nondispositive
issue if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); D.
Minn. L.R. 72.2(a). The Court has reviewed the submissions and the record in
this case and concludes that Magistrate Judge Brisbois’ November 21, 2011 Order
is neither clearly erroneous nor contrary to law. Plaintiff has failed to show that
a subpoena was properly served on the FDIC, despite numerous opportunities
granted by Magistrate Judge Brisbois. Therefore, the November 21, 2011 Order is
affirmed.

Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

United States Magistrate Judge Leo I. Brisbois’ November 21, 2011
Order [Docket No. 146] is AFFIRMED.
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2.

Defendant’s appeal of that order [Docket No. 154] is DENIED.

Dated: February 13, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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