Eshelman v. Auerbach et al

Filing 303

ORDER denying 257 APPEAL OF US MAGISTRATE JUDGE DECISION. Signed by Chief Judge James C. Dever III on 9/20/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DNISION
No. 7:16-CV-18-D
FREDRIC N. ESHELMAN,
Plaintiff,

v.
PUMA BIOTECHNOLOGY, INC.,
Defendant.

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ORDER

On January 8, 2018, Magistrate Judge Jones granted Fredric Eshelman's ("Eshelman" or

''plaintiff'') motion to compel but declined to award attorney's fees. See [D.E. 246] 4--10. On
January 22, 2018, Eshelman appealed Judge Jones's order [D.E. 257], filed a memorandum in
support [D.E. 258], and argued that Judge Jones erred in denying attorney's fees. See [D.E. 258]
3-5. On February 5, 2018, Puma Biotechnology, Inc. ("Puma" or "defendanf') responded in
opposition [D.E. 271].
This court can modify or set aside a magistrate judge's order if the order is "clearly
erroneous" or "contrary to law." 28 U.S.C. § 636(b)(l)(A); Fed. R Civ. P. 72(a). In declining to
award attorney's fees to Eshelman, Judge Jones found it "significant that [Eshelman] failed to certify
that he attempted to resolve the issues presented ... prior to filing the motion, particularly given
[Eshelman's] rejection of [Puma's] offer to allow him to review the unredacted documents in person
in order to avoid court intervention. See Local Civil Rule 7.1(c)(2)." [D.E. 246] 10.
Eshelman admits that his motion to compel did not include a certification from his counsel
pursuant to Local Civil Rule 7.1 (c)(2). See [D.E. 258] 3-4; cf. Local Civil Rule 7.1 (c)(2) ("Counsel
must also certify that there has been a. good faith effort to resolve discovery disputes prior to the
filing ofany discovery motions."). Eshelman argues, however, that his attorneys did meet and confer

in good faith with Puma's attorneys and attached "correspondence demonstrating in detail their good
faith efforts to do so." Id. at 3. Eshelman then argues that Judge Jones elevated form over substance
in construing Local Civil Rule 7.1(c)(2) to require a signed certification. See id. at 4.
The court rejects Eshelman's understanding of Local Civil Rule 7.1 (c)(2) and Judge Jones's
order. Filing correspondence between counsel concerning a discovery dispute is not a substitute for
the certification that Local Civil Rule 7.1(c)(2) requires. Such correspondence often reflects
anything but a good faith effort to resolve a discovery dispute. Moreover, even though not required
to do so, this court has reviewed the correspondence attached to Eshelman's motion to compel, and
it shows that Eshelman's counsel unreasonably refused to meet with Puma's counsel in person to
review the unredacted material in dispute. See [D.E. 160-5]. Notably, in declining to award
attorney's fees, Judge Jones mentioned this unreasonable behavior. See [D.E. 246] 10 (noting
Eshelman's "rejection of [Puma's] offer to allow [Eshelman's counsel] to review the unredacted
documents in person in order to avoid court intervention."). Judge Jones's decision to decline to
award attorney's fees is not clearly erroneous or contrary to law. Thus, the court denies Eshelman's
appeal of Judge Jones's order.

In sum, the court DENIES Eshelman's appeal of Judge Jones's order concerning attorney's
fees [D.E. 257].
SO ORDERED. This ....1.0 day of September 2018.

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