empirical foods, inc. v. Primus Builders, Inc.
MEMORANDUM AND ORDER that empirical foods, inc.'s Objections (Filing No. 156 ) to the magistrate judge's Memorandum and Order (Filing No. 154 ) are overruled. The magistrate judge's Memorandum and Order (Filing No. 154 ) is affirmed . On or before July 7, 2021, Primus Builders, Inc. and Swisslog Logistics, Inc. shall submit an itemized billing statement of their fees to empirical. empirical's counsel shall respond to this itemization by July 19, 2021. If the parties agree a s to the amount to be awarded, they shall file a joint stipulation for entry of an order awarding costs and fees to Primus and Swisslog by July 26, 2021. If the parties do not agree on the attorney's fees and costs to be awarded, Primus and Swis slog shall file a motion for assessment of attorney fees and costs no later than August 2, 2021. If an application for fees is required, the Court may award both Primus and Swisslog up to an additional $1,500.00 to recover the cost of preparing application(s) for assessment of fees. empirical's Motion for Leave to Allow Evidence in Support of Reply Brief (Filing No. 168 ) is granted. Ordered by Judge Robert F. Rossiter, Jr. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EMPIRICAL FOODS, INC.,
Plaintiff, CounterDefendant, Cross
PRIMUS BUILDERS, INC.,
Counter Defendant, and
SWISSLOG LOGISTICS, INC.,
Cross Claimant, and
This matter is before the Court on empirical foods, inc.’s (“empirical”) Objections
(Filing No. 156) to the magistrate judge’s 1 Memorandum and Order dated April 21, 2021
(Filing No. 154) (“sanctions order”), finding Primus Builders, Inc. (“Primus”) and
Swisslog Logistics, Inc. (“Swisslog”) are entitled to reimbursement for attorney fees,
expert fees, and mediator fees and expenses they incurred while preparing for mediation.
The magistrate judge found empirical should pay these costs because it violated the Court’s
discovery order (“discovery order”) dated December 22, 2020 (Filing No. 100). For the
The Honorable Cheryl R. Zwart, United States Magistrate Judge for the District of
reasons stated below, the Court overrules empirical’s objections and affirms the magistrate
judge’s sanctions order. 2
empirical contracted with Primus to design and construct a fully automated meat
processing facility in South Sioux City, Nebraska (“facility”), and Swisslog was listed as
the subcontractor responsible for the automated storage and retrieval system (“ASRS”)
housed within the Facility. Throughout 2017 and 2018, empirical and Swisslog adjusted
the requirements for the ASRS, which affected the system’s functionality. By early 2019,
empirical claimed the ASRS was defective and needed to be replaced. According to
empirical’s reading of its contract with Primus, Primus was responsible for Swisslog’s
alleged failure to implement a functional ASRS, and empirical filed this lawsuit against
Primus on October 18, 2019.
On November 20, 2019, empirical notified Primus it retained a new contractor,
Westfalia Technologies, Inc. (“Westfalia”), to complete the ASRS. Primus urged empirical
to postpone its plan to replace the ASRS and asked for additional time to complete testing.
Primus joined Swisslog as a party to this lawsuit on January 7, 2020, and Primus and
Swisslog repeatedly requested to complete additional testing of the ASRS. Swisslog and
Primus both completed inspections in February 2020, but Primus was never able to
complete the testing it requested due to the COVID-19 pandemic and disputes among the
On April 14, 2020, empirical unilaterally began disassembling the ASRS. Unable
to reach a compromise, Primus filed a motion for a temporary restraining order (Filing
No. 47), asking the Court to require empirical to stop the disassembly of the ASRS until
Primus could conduct end-to-end testing. After a hearing on Primus’s motion, this Court
determined that the matter was—at root—a discovery dispute best handled by the
empirical also filed a Motion for Leave to Allow Evidence in Support of Reply
Brief (Filing No. 168) pursuant to NECivR 72.2(b)(1), which is granted.
The magistrate judge ultimately agreed with Primus and ordered
empirical to stop disassembling the ASRS (Filing No. 65). This Court affirmed the
magistrate judge’s order (Filing No. 81).
During a status conference on December 8, 2020, the magistrate judge discovered
the parties had still not resolved the ASRS testing and disassembly conflict. Given the
significant time already put into this discovery matter, the magistrate judge referred
resolution on this point to a mediator and ordered the parties to jointly submit a proposed
order outlining discovery and deadlines for the mediation (Filing No. 93). Among other
topics of dispute, the parties discussed, but ultimately did not resolve whether certain
documents would have an “attorneys’ eyes only” (“AEO”) designation. The magistrate
judge held another hearing on December 17, 2020, and set a deadline of December 21,
2020, for the submission of a proposed mediation discovery order.
The magistrate judge adopted the discovery order, which was drafted in large part
by empirical and submitted jointly by the parties. The discovery order set forth specific
categories of documents to be produced, including empirical’s “contract with Westfalia for
repair/replacement of the existing ASRS System” (“Westfalia contract”). The discovery
order did not specifically note any type of protection for the Westfalia contract and no party
sought to modify it.
Although empirical produced the Westfalia contract in part, it did not include a
portion titled “Phase I Proposal,” which described the work to be performed by Westfalia.
After Swisslog asked for the Phase I Proposal, empirical provided a redacted version.
Following yet another request, empirical provided Primus and Swisslog a redacted version
of work to be completed by Westfalia in “Phase II.” Despite requests for unredacted
versions of these documents, empirical refused, arguing Westfalia objected to their
production because Swisslog was its competitor.
On the evening of January 24, 2021, the night before the scheduled mediation,
Westfalia filed a third-party motion for a protective order (Filing No. 109) related to the
Phase I Proposal and Phase II documents, claiming they contained proprietary information.
To address the redaction dispute, the magistrate judge held another hearing the next
morning. Primus and Swisslog argued empirical knew of its obligations to Westfalia, yet
empirical itself drafted the discovery order and did not include any specific protections for
the Westfalia contract. Instead, it supposedly relied on a discussion among the parties that
they would implement an AEO designation.
After hearing argument from all parties and Westfalia, the magistrate judge
determined empirical violated the discovery order and allowed Primus and Swisslog to
move for sanctions based on empirical’s noncompliance. Now before the Court are
empirical’s objections to the magistrate judge’s sanctions order. empirical argues the
magistrate judge erred in finding (1) empirical violated the discovery order and was not
substantially justified in producing redacted versions of the Westfalia contract documents,
(2) the sanctions award was not unjust, and (3) the scope of the sanctions is appropriate.
Standard of Review
A party may object to a magistrate judge’s order on a nondispositive matter. Fed.
R. Civ. P. 72(a). The Court may reconsider any part of the order if it is clearly erroneous
or contrary to law. Id.; 28 U.S.C. § 636(b)(1)(A); cf. Lisdahl v. Mayo Found., 633 F.3d
712, 717 (8th Cir. 2011) (“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.’” (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985))). “An order is contrary to the law ‘if it fails to apply or
misapplies relevant statutes, case law, or rules of procedure.’” Parker v. United States, No.
8:18CV123, 2019 WL 2076795, at *1 (D. Neb. May 10, 2019) (quoting Knutson v. Blue
Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)).
Failure to Comply with the Discovery Order
Under Federal Rule of Civil Procedure 37(b)(2)(C), when a party disobeys a
discovery order, “the court must order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other circumstances make an award
of expenses unjust.” The Court must apply Rule 37 sanctions diligently. See Comiskey v.
JFTJ Corp., 989 F.2d 1007, 1012 (8th Cir. 1993).
empirical first argues the magistrate judge erred in finding it violated the discovery
order at all. empirical maintains it complied with the discovery order, and “[t]he fact that
those documents were partially redacted does not change the fact that empirical produced
them.” Despite empirical’s arguments that “parties redact documents all the time” and
“[r]edacting a document pending a ruling by the court is not uncommon,” the magistrate
judge’s ruling that empirical violated the discovery order, which mandated wholesale
production of the Westfalia contract, was not clearly erroneous or contrary to law under
the circumstances of this case.
Next, empirical claims its production of a redacted version of the Westfalia contract
was substantially justified because (1) it was contractually obligated to protect the
confidentiality rights of Westfalia and (2) “Primus and Swisslog reneged on their
agreement to enter an AEO protective order.” But as the magistrate judge pointed out,
empirical knew of its confidentiality obligations to Westfalia and played a key role in
drafting the discovery order that called for the production of the entirety of the Westfalia
contract. Yet empirical neither requested a protective order nor timely notified the Court
as to its dispute. It is also clear empirical was on notice that the purported AEO designation
was anything but certain. The Court agrees with the magistrate judge’s ruling that
empirical’s “complete lack of proactive response to this impending issue does not create
any justification, let alone a substantial justification, for failure to comply” with the
Other Unjust Circumstances
In ordering sanctions under Rule 37(b)(2)(C), the Court also considers whether
other circumstances make the award unjust. As empirical sees it, the award of attorney
fees was unjust because the magistrate judge did not give empirical a reasonable
opportunity to be heard on the issue. This assertion is simply untrue. At the emergency
hearing before the mediation on January 25, 2021, Primus and Swisslog moved for
sanctions. Counsel for empirical was present and had a full and fair opportunity to argue
why sanctions should not be imposed. The magistrate judge also ordered briefing on the
subject before deciding what sanctions to award.
empirical also faults the magistrate judge for refusing to accept a “no harm, no foul”
argument. empirical believes the imposed sanctions are unjust because it participated in
the mediation in good faith and Primus and Swisslog eventually received the Westfalia
contract in full. Yet empirical ignores the fact it only turned over the Westfalia contract
documents after the magistrate judge issued a second order requiring it to provide them.
“[A] party may not avoid sanctions merely by producing the documents after a motion has
been filed.” Illinois Tool Works, Inc. v. Metro Mark Prods., Ltd., 43 F.Supp.2d 951, 960
(N.D. Ill. 1999). It was not clearly erroneous or contrary to law for the magistrate judge to
reject those arguments.
Scope of Sanctions
Alternatively, empirical objects to the scope of the sanctions awarded to Primus and
Swisslog, arguing the magistrate judge “established no causal connection between
empirical’s redactions and all of the fees and expenses that she awarded.” Because the
mediation was ordered before empirical’s failure to comply with the discovery order,
empirical argues “only a small fraction of Primus’s and Swisslog’s mediation-related fees
could have had anything to do with empirical’s redaction of the Westfalia documents.” But
empirical’s argument mischaracterize the magistrate judge’s findings in the sanctions
The Court has wide latitude in imposing sanctions for violating a discovery order,
so long as the sanction is “‘just’ and relate[s] to the claim at issue in the order to provide
discovery.” Hairston v. Alert Safety Light Prods., Inc., 307 F.3d 717, 719 (8th Cir. 2002)
(quoting Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 558 (1992)). The magistrate
judge carefully considered the available sanctions and tailored the award to reflect the time
spent working on the mediation only after empirical’s violation of the discovery order—
not the entire period leading up the mediation. The magistrate judge’s order was not clearly
erroneous or contrary to law; empirical’s behavior disrupted and delayed preparation for
the mediation, created a hostile environment leading up to the mediation, and prevented
Swisslog and Primus from having an opportunity to consider necessary information for
IT IS ORDERED:
empirical foods, inc.’s Objections (Filing No. 156) to the magistrate judge’s
Memorandum and Order (Filing No. 154) are overruled.
The magistrate judge’s Memorandum and Order (Filing No. 154) is affirmed.
On or before July 7, 2021, Primus Builders, Inc. and Swisslog Logistics, Inc.
shall submit an itemized billing statement of their fees to empirical.
empirical’s counsel shall respond to this itemization by July 19, 2021.
If the parties agree as to the amount to be awarded, they shall file a joint
stipulation for entry of an order awarding costs and fees to Primus and
Swisslog by July 26, 2021.
If the parties do not agree on the attorney’s fees and costs to be awarded,
Primus and Swisslog shall file a motion for assessment of attorney fees and
costs no later than August 2, 2021. This motion shall be submitted in
accordance with the Court’s fee-application guidelines outlined in Nebraska
Civil Rules 54.3 and 54.4, but a supporting brief is not required.
If an application for fees is required, the Court may award both Primus and
Swisslog up to an additional $1,500.00 to recover the cost of preparing
application(s) for assessment of fees.
empirical’s Motion for Leave to Allow Evidence in Support of Reply Brief
(Filing No. 168) is granted.
Dated this 7th day of June 2021.
BY THE COURT:
Robert F. Rossiter, Jr.
United States District Judge
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