Inline Packaging, LLC v. Graphic Packaging International, Inc.
MEMORANDUM OPINION AND ORDER overruling 116 Defendant's OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge (Written Opinion). Signed by Judge Ann D. Montgomery on 01/05/2017. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Inline Packaging, LLC,
Civil No. 15-3183 ADM/LIB
Graphic Packaging International, Inc.,
Robert R. Weinstine, Esq., Justice Ericson Lindell, Esq., and Brent Lorentz, Esq., Winthrop &
Weinstine, PA, Minneapolis, MN, on behalf of Plaintiff.
Felicia Boyd, Esq., Barnes & Thornburg LLP, Minneapolis, MN; David Hamilton, Esq.,
Womble Carlyle Sandridge & Rice, LLP, Baltimore, MD; Jason Hicks, Esq., and Amanda Norris
Ames, Esq., Womble Carlyle Sandridge & Rice, LLP, Washington, D.C., on behalf of
This matter is before the undersigned United States District Judge for a ruling on
Defendant Graphic Packaging International, Inc.’s (“Graphic”) Objection [Docket No. 116] to
Magistrate Judge Leo I. Brisbois’ November 2, 2016 Order (“Order”) [Docket No. 113] granting
in part Inline Packaging LLC’s (“Inline”) Third Motion to Compel Discovery and Request for
Order to Show Cause [Docket No. 99] (“Third Motion to Compel”). Graphic argues it should
not have been ordered to partially reimburse Inline for the fees and expenses Inline incurred in
bringing the Third Motion to Compel. For the reasons set forth below, the Objection is
Graphic objects to a fee award that resulted from Inline’s Third Motion to Compel. In
that Motion, Inline asked Judge Brisbois to order Graphic to identify susceptor sales and
paperboard sales from 2002 to 2007. Judge Brisbois had earlier ordered Graphic to produce that
information by August 15, 2016. See Order, July 25, 2016 [Docket No. 77]. By September 20,
2016, Graphic had not provided the information and had stated to Inline that “Graphic does not
keep a list of susceptor verses non-susceptor products. Graphic is not required to analyze 14
years of data and perform a forensic analysis of each product sold to determine whether it
included susceptor technology or not.” Second Lorenz Decl. [Docket No. 103] Ex. M at 79.1
Inline filed the Third Motion to Compel on September 21, 2016, the day after receiving this
response from Graphic.
On October 5, 2016, Judge Brisbois held a hearing on the Third Motion to Compel. At
the hearing, Inline initially stated that it no longer believed Graphic’s discovery responses were
deficient, because Graphic had informed Inline that information identifying sales of susceptor
versus non-susceptor products from 2002 to 2007 did not exist. Hr’g Tr. [Docket No. 115] at
3:4–15. As the hearing progressed, however, Inline retreated from that position because Graphic
never stated at the hearing that it was incapable of telling which sales were susceptor and which
were not, only that it did not maintain a list identifying such sales. Id. at 19:15–20:2.
During Graphic’s oral argument, Judge Brisbois asked Graphic’s counsel to clarify
whether the requested information was nonexistent or, alternatively, whether the information had
existed but had not been assembled:
Well, there’s a difference between it does not exist or it will
take us time to pull it together. I mean, so which is it? What
is your position? I mean, there are sentences in your briefing
that lay out, We told them it doesn’t exist; and then at another
point you say, Well, it would take too much to pull it
This page number refers to the number assigned by the Court’s CM/ECF system.
together. Which is it?
Id. at 12:18–24. Rather than definitively stating whether or not the information existed,
Graphic’s counsel responded:
Graphic does not keep a list of susceptor products versus nonsusceptor products. It has just a list of the paperboard
products that it sells. You can look at that list and if the word
“susceptor” is contained in the product name, then you can
know that that was a susceptor product. It if [sic] the word
“SUC” is contained in there, you can probably figure out that
that’s a susceptor product.
Id. at 13:8–14. Graphic’s counsel also stated that Graphic employees lacked personal knowledge
of which products sold in 2002 were susceptor products and which were not. Id. at 14:6–15.
Later, Inline’s counsel stated, “What I heard [Graphic’s counsel say] today was we don’t
have a list. That’s a different issue. I didn’t ask for a list. It’s an interrogatory. I asked for
information. . . . The question is can you tell me which are which?” Id. at 19:19–20:1.
Judge Brisbois then asked Graphic’s counsel: “[C]an you tell him which are which for
2002 to 2007?” Id. at 20:3–4. Once again, rather than responding with an unequivocal yes or
no, Graphic’s counsel stated: “The 2002 to 2007 data is still being compiled. It’s in the Legacy
system. It is my understanding that that data does not contain the same kinds of descriptive
information that the current data does.” Id. at 20:7–10.
Judge Brisbois attempted to clarify this response by asking, “So you can’t look at the
material and some of them have ‘SUCP’ next to it. That information isn’t in it?” Id. at
20:11–13. Graphic’s counsel replied:
I suspect that some of it will say susceptor, some of it will say SUC
in some of the descriptors. That probably isn’t going to be the full
list of susceptor products. And there isn’t an institutional knowledge
within Graphic to go back to 2002 to interview somebody who made
that product to say, Do you remember if that had a susceptor in it or
not? It’s one part of many in these products.
Id. at 20:14–21. In response to this answer, Judge Brisbois stated: “Short direct answers seem to
be an impossibility here.” Id. at 20:22–24.
Judge Brisbois then took the attorney’s fees issue under advisement and held the Third
Motion to Compel in abeyance so the parties could further discuss and clarify whether Graphic
had adequately responded to Inline’s request for information of Graphic’s susceptor and nonsusceptor product sales from 2002 to 2007. Id. at 20:25–21:15.
Thereafter, the parties filed a joint letter indicating that they had resolved their dispute
over the sales information at issue in the Third Motion to Compel. Joint Letter [Docket No.
111]. Thus, the only remaining issue was Inline’s request for attorney’s fees expended in
bringing the Third Motion to Compel. As to that issue, Judge Brisbois concluded that under
Federal Rule of Civil Procedure 37(a)(5)(A), Inline was entitled to $4,115.00 in reasonable fees
and expenses. Order at 18–20. Judge Brisbois imposed the award based on “Graphic’s failure to
comply with the Court’s July 25, 2016, Order and its repeated failure to clearly identify a date
upon which it would provide the responsive information sought caused Inline to file its Third
Motion to Compel.” Id. at 18.
Graphic objects to the fee award, arguing that it is contrary to law because it is not
authorized by Federal Rule of Civil Procedure 37. Graphic also argues that even if the award
was authorized under Rule 37, Judge Brisbois clearly erred by abusing his discretion in ordering
A. Standard of Review
The standard of review applicable to an appeal of a magistrate judge’s order on a
nondispositive issue is extremely deferential. Reko v. Creative Promotions, Inc., 70 F. Supp. 2d
1005, 1007 (D. Minn. 1999). The district court must affirm an order by a magistrate judge
unless it is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir.1996). “A decision is
‘contrary to law’ when it ‘fails to apply or misapplies relevant statutes, case law or rules of
procedure.’” Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn.
2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 592 F. Supp. 2d 1087,
1093 (N.D. Iowa 2008)).
B. Graphic’s Objection
Graphic argues that Federal Rule of Civil Procedure 37(a)(5)(A) does not authorize the
fee award. Rule 37(a)(5)(A) provides:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted--or if the
disclosure or requested discovery is provided after the motion
was filed--the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees. But
the court must not order this payment if:
(I) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery
without court action;
(ii) the opposing party’s nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
Fed. R. Civ. P. 37(a)(5)(A). Rule 37 also states: “For purposes of this subdivision (a), an
evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose,
answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Graphic contends that the fee award is not authorized under Rule 37 because Graphic did
not provide a disclosure or discovery after the Third Motion to Compel. The Court disagrees.
Judge Brisbois determined that Graphic did not clearly disclose whether information regarding
susceptor sales from 2002–2007 existed (as opposed to whether a list of such sales existed) until
after Inline filed the Third Motion to Compel. This finding is not clearly erroneous. The hearing
transcript reflects the evasiveness of Graphic’s response regarding the existence of the
2002–2007 susceptor and non-susceptor sales information. Because Graphic’s disclosure on this
issue was not definitively provided until after the Third Motion to Compel was filed, the award
of sanctions is authorized under Rule 37(a)(5)(A) and is not clearly erroneous or contrary to law.
Additionally, Judge Brisbois properly exercised his discretion to grant the award. Judge
Brisbois has significant familiarity with this case, having presided over the parties’ multiple
pretrial disputes and has issued extensive orders resolving those disputes. See, e.g., Order, July
25, 2016 [Docket No. 77] (39 page order); Order, September 6, 2016 [Docket No. 97] (21 page
order). He is in the best position to determine whether an award of fees is warranted, and his
decision to grant the award is supported by the record.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Graphic’s Objection [Docket No. 116] is OVERRULED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 5, 2017.
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