Russell v. Anderson

Filing 84

MEMORANDUM AND ORDER - Plaintiff's Statement of Objections to Magistrate Judge's Order (Filing No. 75 ) is denied. The Magistrate Judge's Order entered on July 31, 2018 (Filing No. 72 ), is sustained and shall not be disturbed. Defendant's Motion for Leave to File Surreply (Filing No. 81 ) is denied. Ordered by Senior Judge Richard G. Kopf. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID T. RUSSELL,
Plaintiff,
v.
EDWARD R. ANDERSON,
Defendant.

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4:17CV3085

MEMORANDUM
AND ORDER

This is a diversity negligence action stemming from a collision between
Defendant’s car and Plaintiff’s motorcycle after Defendant’s car crossed the center
line of the highway. The court previously granted summary judgment in favor of
Plaintiff as to Defendant’s liability for crossing the center line (Filing No. 73).
Remaining for trial are the issues whether Plaintiff failed to mitigate his damages and
whether Plaintiff was negligent in contributing to cause the collision. (Filing No. 73
at CM/ECF p. 9.)
In an Order entered on July 31, 2018, (Filing No. 72)—and after having
addressed numerous prior discovery disputes in this case (Filing Nos. 36, 39, 48,
54)—Magistrate Judge Bazis denied Defendant’s Motion for Sanctions (Filing No.
56), granted Defendant’s Motion to Compel (Filing No. 70), and continued the pretrial
conference and trial. On August 13, 2018, Plaintiff filed an Objection (Filing No. 75)
to the portions of the Magistrate Judge’s Order which:
1.

Allowed Defendant to serve subpoenas upon all of Plaintiff’s medical
providers who treated him during the 10 years immediately preceding the
accident, regardless of why treatment was provided, and despite the fact
that the deadline for written discovery expired four months earlier;

2.

Required Plaintiff to produce all bank statements, ledgers, balance
summaries, or any other documentation evidencing Plaintiff’s spending
on the date of the accident (August 9, 2013), and for the two weeks
preceding and two weeks following the date of the accident;

3.

Required Plaintiff to produce all statements, invoices, data summaries,
or any other documentation evidencing the use of, and expenses related
to, the Sprint phone Plaintiff used on the date of the accident (August 9,
2013) and from July 9, 2013, to the present; and

4.

Found good cause to modify the progression order and direct the
production of the above information outside the deadlines set forth
therein, as well as continued the trial.

After careful review conducted pursuant to 28 U.S.C. § 636(b)(1)(A), Fed. R.
Civ. P. 72(a), and NECivR 72.2, I find that the challenged portions of the Magistrate
Judge’s order are not clearly erroneous or contrary to law. See Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (“the district court has broad discretion
in establishing and enforcing the deadlines” set forth in the court’s scheduling order);
E.E.O.C. v. Prod. Fabricators Inc., 285 F.R.D. 418, 421 (D. Minn. 2012) (extending
discovery deadlines to allow production of medical, employment, and tax records that
party had been compelled to produce by prior court order); Hajek v. Kumho Tire Co.,
Inc., No. 4:08CV3157, 2010 WL 1292447, at *2 (D. Neb. Mar. 30, 2010) (“In
discovery matters, the magistrate judge is afforded great deference.”) (citing Pflum v.
United States, 212 F.R.D. 580, 582 (D. Kan. 2003)); Brooks v. Lincoln Nat’l Life Ins.
Co., No. 8:05CV118, 2006 WL 2487937, at *3 (D. Neb. Aug. 25, 2006) (“Under a
clearly erroneous standard, a district court can reverse a magistrate judge’s order only
if the court is left with the definite and firm conviction that a mistake has been
committed.”) (internal quotation omitted).
Accordingly,
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IT IS ORDERED:
1.
Plaintiff’s Statement of Objections to Magistrate Judge’s Order (Filing
No. 75) is denied;
2.
The Magistrate Judge’s Order entered on July 31, 2018 (Filing No. 72),
is sustained and shall not be disturbed; and
3.

Defendant’s Motion for Leave to File Surreply (Filing No. 81) is denied.

DATED this 10th day of September, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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