Bachman et al v. Bachman et al

Filing 228

ORDER that the Plaintiffs' Objection to Magistrate Judge's Order, Filing 217 , is denied. Plaintiffs must file notice with the Court within five calendar days of the date of this order stating that they will attend their depositions as scheduled and ordered. Ordered by Judge Brian C. Buescher. (LAC)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JAMES E. BACHMAN, ADELLA A.
BACHMAN, ERIC J. BACHMAN, RACHEL
A. BACHMAN, MATTHEW R. BACHMAN,
and C. ANDREW BACHMAN,

8:19-CV-276

Plaintiffs,
MEMORANDUM AND ORDER
vs.

JOHN Q. BACHMAN, and LEAF SUPREME
PRODUCTS, LLC, A Nebraska Limited
Liability Co.;

Defendants.

I.

INTRODUCTION

Before the Court is Plaintiffs’ Objection to Magistrate Judge’s Order, Filing 217, which
allowed Defendants to re-notice the deposition of several deponents and stated that Defendants
may conduct discovery related to their counterclaims and affirmative defenses. Filing 216. This is
the fourth time that the Court has been required to rule on an objection to a decision by the
Magistrate Judge resolving a discovery dispute in this case. See Filing 68; Filing 145; Filing 184.
The Court will overrule Plaintiffs’ objection. Furthermore, the Court orders Plaintiffs to file a
notice with the Court stating that they will attend their depositions within five calendar days of the
date of this order.

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II.

BACKGROUND

A recitation of the entire factual background of this case is not necessary to rule on the
current motion. The Court incorporates its previous orders which contain a more detailed statement
of the facts and procedural history of this case. See Filing 10; Filing 23; Filing 101; Filing 145;
Filing 203.
The facts relevant to the current motion are as follows: Defendant Leaf Supreme Products,
LLC, (“Leaf Supreme”) is a Nebraska limited liability company. Filing 26 at 1. It manufactures
guards that keep debris out of rain gutters. Filing 26 at 2. Defendant John Q. Bachman is a member
and majority owner of Leaf Supreme. Filing 26 at 1. Plaintiffs have been Leaf Supreme’s only
employees. Filing 26 at 2-4. Plaintiffs assert that from October 1, 2016, to the present, they have
not been paid any wages. Filing 26 at 8. Plaintiffs allege that James, Adella, Eric, Andrew, Rachel,
and Matthew Bachman were all employees of Leaf Supreme from its inception until April 4, 2019.
Filing 26 at 2-4.
On August 21, 2021, Defendants filed an Amended Motion to Compel. Filing 207. In their
motion, Defendants requested that the Magistrate Judge issue an order dismissing this case as a
sanction for Plaintiffs’ conduct. Filing 207 at 2. Alternatively, Defendants requested an order
compelling Plaintiffs to answer questions in discovery, including questions about Defendants’
affirmative defenses and counterclaims, as well as an extension of the discovery and dispositive
motion deadline. Filing 207 at 2.
With their motion, Defendants filed excerpts of their depositions of James, Andrew,
Adella, and Eric Bachman. During the deposition of plaintiff James Bachman, who also serves as
counsel for Plaintiffs, James Bachman refused to answer several questions based on his belief that
they were irrelevant. Filing 206-3 at 6–9, 12–14. In other depositions, James Bachman, acting as

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attorney, instructed the deponent not to answer questions based on relevancy objections. See, e.g.,
Filing 206-3 at 38; Filing 211-2 at 1–2, 4–5. He also made numerous speaking objections that he
framed as relevancy objections, see, e.g., Filing 211-2 at 1, 14; Filing 211-3 at 17, as well as
constant “asked and answered,” “foundation,” and overbroad and improper “privilege” objections.
See, e.g., Filing 206-3 at 39–40; Filing 211-3 at 7, 11–13.
This misbehavior extended beyond James Bachman, however. Several times the deponents
refused to answer a question when James Bachman made an objection. See, e.g., Filing 211-3 at
6, 9, 15. At two points in plaintiff Adella Bachman’s deposition, the record appears to show that
she looked at James Bachman before answering questions. Filing 206-3 at 40–41, 45. When
Defendants’ counsel stated that he would have to ask the Magistrate Judge for a ruling to compel
the answers, plaintiff Andrew Bachman stated, “Is your mommy going to help you” in a reference
this Court concludes to be a reference to Magistrate Judge Cheryl Zwart. Filing 211-2 at 11.
Also included with Defendants’ motion was the deposition of nonparty Bradley Dollis. In
his deposition, Dollis stated that James Bachman called him to tell him not to attend his deposition.
Filing 206-2 at 67. According to Dollis, James Bachman told him not to attend because his
testimony was irrelevant. Filing 206-2 at 68.
Despite Plaintiffs’ conduct, the Magistrate Judge decided not to dismiss the case with
prejudice. Rather, the Magistrate Judge directed that Defendants could re-notice the depositions of
plaintiffs James Bachman, Andrew Bachman, Adella Bachman, and Eric Bachman at Plaintiffs’
expense. Filing 216 at 5–6. The Magistrate Judge further ordered that the depositions would take
place before her so that she could rule on objections during the depositions. Filing 216 at 6.
Because the depositions were to take place again, the Magistrate Judge did not rule on all the
objections asserted by Plaintiffs during their depositions. Filing 216 at 6. In the same order, the

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Magistrate Judge denied Plaintiffs’ Motion to Compel the deposition of defendant John Bachman
because Defendants never formally noticed John Bachman and the deadline to notice and take new
depositions had elapsed. Filing 216 at 7.
On October 22, 2021, Plaintiffs filed an Objection to Magistrate Judge’s Order in which
they argue that Defendants are not entitled to equitable defenses, that Defendants waived their
right to claim certain withdrawals by Plaintiffs were wages, and that the Magistrate Judge erred in
denying their request to depose John Bachman. Filing 217; Filing 218 at 1–10.
III.

ANALYSIS

A. Standard of Review
When a party objects to a magistrate judge’s order on a nondispositive pretrial matter, a
district court may set aside any part of the order shown to be clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1)(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.” Chase v. Comm’r, 926 F.2d 737,
740 (8th Cir. 1991) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An
order is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of
procedure.” Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040 (S.D. Iowa
2010) (internal quotation marks omitted). The standard of review for an appeal of a Magistrate
Judge’s order on nondispositive matters is extremely deferential. See 28 U.S.C. § 636(b)(1)(A);
Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 235 (D. Minn. 2013).
B. The Magistrate Judge’s Order Was Not Clearly Erroneous or Contrary to Law
In much of their brief in support of their objection, Plaintiffs argue that Defendants cannot
assert equitable defenses or claim that withdrawals made by Plaintiffs were wages. Filing 218 at

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1–8. As the Magistrate Judge observed, Plaintiffs have made this same argument incessantly
despite the Court consistently rejecting their argument. See, e.g., Filing 83; Filing 85; Filing 126.
The Court has repeatedly explained to Plaintiffs that the Court will not make a final ruling on
whether Defendants may assert equitable defenses and counterclaims until the parties have
conducted sufficient discovery. See, e.g., Filing 101 at 11–14; Filing 122 at 15; Filing 145 at 3–6.
Moreover, the Magistrate Judge expressly stated in her order that she was not making a final
determination of the validity of Plaintiffs’ objections. Filing 216 at 6. Thus, not only are Plaintiffs’
arguments in their brief improper for the reasons this Court has explained earlier in this litigation,
they are also irrelevant.
Assuming that Plaintiffs are also objecting to the Magistrate Judge allowing Defendants to
retake the depositions in her presence, the Court concludes that the Magistrate Judge’s decision is
warranted. Given the conduct of Plaintiffs during these depositions, allowing Defendants to retake
the depositions in front of the Magistrate Judge is necessary to proceed with discovery in this case.
The Court has reviewed the deposition transcripts filed by Defendants and is shocked by Plaintiffs’
behavior, especially the conduct of James Bachman. Plaintiffs exhibited inexcusable hostility to
Defendants’ counsel and refused to answer countless questions in violation of law. Andrew
Bachman’s reference to the Magistrate Judge as defense counsel’s “mommy” demonstrates clear
disrespect to her and the Court.
All this pales in comparison, however, to James Bachman apparently calling a nonparty
deponent and imploring him not to attend his deposition. This action by James Bachman, a licensed
attorney, is astonishing. And, as the Magistrate Judge correctly noted, such conduct is also
sanctionable. See Fed. R. Civ. P. 37.

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Finally, Plaintiffs object to the Magistrate Judge’s denial of their motion to compel the
deposition of defendant John Bachman. Filing 218 at 10. The Court has reviewed the record and
agrees with the Magistrate Judge that Plaintiffs never formally noticed John Bachman’s deposition.
The deadline to notice and take new depositions has passed and Plaintiffs make no arguments that
they have good cause to extend these deadlines. In summary, the Magistrate Judge’s order was not
clearly erroneous or contrary to law. Plaintiffs’ objections are overruled.
C. Plaintiffs Must File a Notice That They Will Attend Their Depositions
In accordance with the Magistrate Judge’s order, Defendants have filed notices to take the
depositions of Adella Bachman, James Bachman, Eric Bachman, and Andrew Bachman. Filing
221; Filing 222; Filing 223; Filing 224. The depositions are to take place at Roman Hruska
Courthouse on December 6, 2021, and December 10, 2021. Filing 221; Filing 222; Filing 223;
Filing 224. Given Plaintiffs’ obstructive conduct in this case, however, the Court needs to ensure
that they will attend their depositions, especially because the Magistrate Judge is going to preside
over them. Thus, Plaintiffs are ordered to file notice with the Court within five calendar days from
the date of this order stating that they will attend their depositions. Violating this directive will
result in sanctions. See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (upholding dismissal with
prejudice as a sanction for violating a court order). Furthermore, failure to attend these depositions
will also result in sanctions. See Schubert v. Pfizer, Inc., 459 F. App’x 568, 572 (8th Cir. 2012)
(upholding dismissal with prejudice as a sanction for willfully violating discovery orders). The
Court hereby gives notice to Plaintiffs that failure to cooperate with the Court’s orders and
discovery in this case may lead to dismissal with prejudice of their case. See Vallejo v. Amgen,
Inc., 903 F.3d 733, 749-50 (8th Cir. 2018) (affirming district court’s imposition of sanctions under

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28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11 for relitigating already-decided discovery
issues).
IV.

CONCLUSION

The Magistrate Judge’s Order was not clearly erroneous or contrary to law. Accordingly,
IT IS ORDERED:
1. Plaintiffs’ Objection to Magistrate Judge’s Order, Filing 217, is denied; and
2. Plaintiffs must file notice with the Court within five calendar days of the date of this
order stating that they will attend their depositions as scheduled and ordered.

Dated this 17th day of November, 2021.

BY THE COURT:

__________________________
Brian C. Buescher
United States District Judge

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