Carter v. Hickory Healthcare Inc. et al

Filing 46

Order: Plaintiff's objections to the order and recommendation of the magistrate judge are overruled, with the caveat that her request for permission to reconsider deposing defendants' seven witnesses be given pretrial attention by th e magistrate judge going forward. The Court agrees with the magistrate judge that it is always best to have a complete record so as to decide cases on the merits. That said, extending case management deadlines, even slightly, can have a cascading eff ect. Therefore, the Court now vacates all case management deadlines and refers the case to Magistrate Judge Burke for all pretrial supervision, including consideration and resolution of any and all discovery matters (and, in particular, plaintiff� 39;s request with respect to defendants' seven witnesses), for resetting of case management deadlines (provided that any additional continuance is relatively brief), and for a report and recommendation on any dispositive motions. The Court will reschedule a trial date only when the need becomes apparent. The Court also notes that it strongly disapproves of the personal attacks by counsel for both sides, and further disapproves the multiplicity of frivolous filings by both sides brought on b y their lack of cooperation. Finally, the Court advises counsel that gratuitous attacks and frivolous filings will not be tolerated and may, in fact, be sanctioned, in the Court's discretion. Emails and telephone messages between counsel are meant to be timely answered and certainly not ignored. Cooperation is not optional, and unprofessional behavior will not be tolerated. (Related Doc. Nos. 27 , 42 ). Judge Sara Lioi on 8/4/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

STYLA Y. CARTER,

PLAINTIFF,
vs.
HICKORY HEALTHCARE INC., et al.,

DEFENDANT.

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CASE NO. 5:14-cv-2691

JUDGE SARA LIOI

ORDER

By order dated June 30, 2015, the Court referred two motions to Magistrate Judge
Kathleen B. Burke: plaintiff’s motion to quash (Doc. No. 26) and defendants’ motion to extend
discovery (Doc. No. 27). The Court asked the magistrate judge to resolve the former and make a
recommendation regarding the latter. Now before the Court is plaintiff’s objection to the order
and recommendation of the magistrate judge. (Doc. No. 43.)
I. STANDARD OF REVIEW
Ordinarily, nondispositive matters are referred to a magistrate judge for outright
disposition, as is the case with the discovery matters presently at issue. Under Fed. R. Civ. P.
72(a), objections to the order of a magistrate judge with respect to the resolution of a
nondispositive matter is reviewed by the district court under the “clear error” or “contrary to
law” standard. United States v. Quinney, 238 F. App’x 150, 152 (6th Cir. 2007) (citing 28 U.S.C.
§ 636(b)(1)(A,B)).

The “clearly erroneous” standard applies to the magistrate judge’s findings of
fact, and the magistrate judge’s legal conclusions are reviewed under the
“contrary to law” standard. Gandee v. Glasser, 785 F. Supp. 684, 686 (S.D. Ohio
1992). A factual finding is “‘clearly erroneous’ when although there is no
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.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 2d 746 (1948)
(explaining the clearly erroneous standard under Rule 52(a)); Hagaman v.
Comm’r of Internal Revenue (quoting U.S. Gypsum Co., 333 U.S. at 395). This
standard does not empower a reviewing court to reverse the magistrate judge’s
finding simply because it would have decided the matter differently. Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518
(1985).
01 Communique Laboratory, Inc. v. Citrix Sys., Inc., 1:06CV253, 2014 WL 2506250, at *3
(N.D. Ohio June 3, 2014); see also Phillips v. Philip Morris Co., Inc., 5:10CV1741, 2013 WL
3291516, at *2 (N.D. Ohio June 28, 2013).
In reviewing a magistrate judge’s decision to determine whether it is “contrary to
law,” a district court is to apply the same standard the Sixth Circuit employs to
review a district court’s ruling on an evidentiary question, which is an “abuse of
discretion” standard. An “abuse of discretion” occurs when a court “‘improperly
applies the law or uses an erroneous legal standard.’” Thomasville Furniture
Indus., 2006 WL 456479, at *1 [N.D. Ohio Feb. 24, 2006] (quoting United States
v. Taplin, 954 F.2d 1256, 1258 (6th Cir. 1992)) (further quotations and citations
omitted).
Phillips, 2013 WL 3291516, at *2.
II. DISCUSSION
A.

Procedural Background
On July 15, 2015, Magistrate Judge Burke issued an Order and Recommendation.

(Doc. No. 42.)1 The order denied plaintiff’s motion to quash as moot to the extent it sought to
1

Before the magistrate judge issued her Order and Recommendation, she first conducted a telephone conference
with counsel, after which she directed them to attempt to resolve, or at least narrow, their discovery disputes.
Counsel were directed to jointly file a status report to advise the magistrate judge as to issues that remained
unresolved and required court intervention. (See Minute Order, Doc. No. 30.) This set off a flurry of reports,
objections and motions. (See Status Report filed by defendants [Doc. No. 31]; Plaintiff’s Objection to Status Report
[Doc. No. 32]; Defendants’ Objection to Objection to Joint Report [Doc. No. 33]; Plaintiff’s 45-Day Status Report
[Doc. No. 35]; Defendants’ Motion to Strike Status Report [Doc. No. 36].) Counsel seem unable to work

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quash the notice of deposition of plaintiff’s counsel because that notice had already been
withdrawn by defendant. The order further denied plaintiff’s motion to the extent it sought to
quash the notice of deposition of plaintiff and also to the extent it sought an award of attorney
fees and costs. (See Doc. No. 42, at 331.) In view of the latter denial, and addressing defendants’
requested discovery extension, “in the interest of having the case heard on the merits” (id. at
332), the magistrate judge recommended a short extension of the discovery deadline “to allow
for the taking of Plaintiff’s deposition and to allow for limited production of documents
responsive to Defendant’s [sic] Requests for Production of Documents relating to the issue of
damages, i.e., Defendant’s [sic] Requests for Production of Documents Nos. 4, 12, and 13.” (Id.
at 333, footnotes omitted.)
On July 16, 2015, plaintiff filed objections to the order and recommendation.
(Doc. No. 43.)2 Plaintiff’s basic argument is that she never agreed to delay discovery pending
mediation (as defendants have incorrectly asserted), that she diligently reached out to
defendants’ counsel and attempted to obtain cooperation to schedule discovery depositions in a
timely fashion but was ignored, and that she withdrew her own request for seven discovery
depositions (deciding to rely upon the testimony of these witnesses in the administrative
proceedings) only to avoid further delay after defendants ignored her scheduling requests. 3 She
argues that, by now permitting defendants’ untimely deposition of plaintiff (whose testimony in

cooperatively and/or to communicate effectively with each other. (See Order and Recommendation, Doc. No. 42 at
328, n.4.)
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The magistrate judge recommended exact deadlines for the discovery extension; however, those deadlines were
rendered unattainable by the filing of plaintiff’s objections. Under Fed. R. Civ. P. 72(b)(2), the Court was required
to wait a minimum of 14 days for any opposition to the objections. As it turned out, none were filed by defendants.
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Plaintiff has not objected to the denial of her request for attorney fees and costs.

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the administrative proceedings is also available), she will be prejudiced due to her inability to
obtain the testimony of defendants’ seven witnesses.
B.

Analysis
1.

Order on Motion to Quash
Relying upon Fed. R. Civ. P. 26(c), plaintiff argued before the magistrate judge

that defendants acted in bad faith by noticing her deposition “at the last hour, unilaterally,” after
failing to cooperate with plaintiff’s earlier attempts to schedule depositions. Plaintiff further
argued that, under Fed. R. Civ. P. 30(a)(2), because she had been deposed during the course of
administrative proceedings, defendants needed leave of court to depose her a second time.
Although acknowledging that the deposition was sought by defendants on “the
eve of the discovery cutoff[,]” (Doc. No. 42 at 331), because plaintiff has not been deposed in
this case and because the notice was served prior to the close of discovery, the magistrate judge
denied the motion to quash, properly concluding that Rule 30(a)(2) would not bar defendants
from redeposing plaintiff. The magistrate judge further noted that, because plaintiff had not
submitted transcripts of the testimony elicited during the administrative proceedings, she had
failed to show, under Rule 26, that being deposed again would impose an undue burden without
resulting in any new evidence or information. The magistrate judge also noted that areas of
damages sought in the instant case, and possibly even some aspects of liability,4 did not appear to
have been within the scope of the administrative proceedings and, therefore, redeposing plaintiff
would not result in duplication.

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The magistrate judge reached this conclusion having ordered defendants to submit a list of the subjects on which
they would depose plaintiff.

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Objecting to this nondispositive order, plaintiff repeats her argument regarding
duplication, and further asserts that defendants should not be allowed to depose her solely
because of the timing of the notice and defendants’ alleged failure to cooperate with plaintiff’s
timely, diligent attempts to schedule depositions. (Doc. No. 43, at 335.) Plaintiff insists that she
never agreed to stay discovery pending the earlier mediation before the magistrate judge.
Applying Rules 26 and 30, the Court finds nothing clearly erroneous or contrary
to law in the magistrate judge’s order denying plaintiff’s motion to quash the notice of her
deposition. Therefore, there is no basis to “modify or set aside any part of the order” under Rule
72(a).
2.

Recommendation re: Extension of Discovery Deadline
In view of the order on the motion to quash, although properly noting that

defendants were “plainly dilatory in pursuing discovery[,]” and that the assertion that the parties
had agreed to stay discovery pending mediation was not supported by the record (Doc. No. 42 at
332), “in the interest of having the case heard on the merits and since Defendant’s [sic] …
request for an extension was its first such request and filed prior to, albeit only one day before,
the close of non-expert discovery,” (id. at 332-33), the magistrate judge recommended a twoweek extension of the discovery deadline. Despite recognizing plaintiff’s “strong opposition to
an extension of the discovery deadline,” (id. at 333), the magistrate judge concluded that plaintiff
would not be unduly prejudiced in the prosecution of her case by a two-week extension.
Objecting to this recommendation, plaintiff claims she will be unduly prejudiced
because, after defendants ignored her timely requests to schedule discovery depositions, she
made the decision not to depose defendants’ seven witnesses, but rather to simply rely upon their
previous testimony during the administrative proceedings. She asserts that she will now be
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placed at a disadvantage if defendants are permitted to depose their witness, but she is not able to
depose hers. She represents that, if given additional time, she would be willing to subpoena the
administrative records and reevaluate whether she needs to depose the seven witnesses.5
As far as it goes, the Court finds no error in the recommendation of the magistrate
judge for a short extension of the discovery deadline to conduct the limited discovery set forth in
the order and recommendation. That said, it is unclear from the record whether plaintiff raised
before the magistrate judge her prejudice argument relating to her inability to depose defendants’
seven witnesses, an argument that is not entirely without merit.
Accordingly, to the extent plaintiff objects to an extension of discovery, that
objection is overruled, subject to the further instructions in the conclusion below.
III. CONCLUSION
Plaintiff’s objections to the order and recommendation of the magistrate judge are
overruled, with the caveat that her request for permission to reconsider deposing defendants’
seven witnesses be given pretrial attention by the magistrate judge going forward. The Court
agrees with the magistrate judge that it is always best to have a complete record so as to decide
cases on the merits. That said, extending case management deadlines, even slightly, can have a
cascading effect.
Therefore, the Court now vacates all case management deadlines and refers the
case to Magistrate Judge Burke for all pretrial supervision, including consideration and
resolution of any and all discovery matters (and, in particular, plaintiff’s request with respect to
defendants’ seven witnesses), for resetting of case management deadlines (provided that any
5

Plaintiff represents that she previously attempted to subpoena the records (see Doc. No. 23), but was advised by
the EEOC that the subpoena did not permit enough time for a response. If discovery is extended, plaintiff seeks
leave to reissue her subpoena to the EEOC.

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additional continuance is relatively brief), and for a report and recommendation on any
dispositive motions. The Court will reschedule a trial date only when the need becomes apparent.
The Court also notes that it strongly disapproves of the personal attacks by
counsel for both sides, and further disapproves the multiplicity of frivolous filings by both sides
brought on by their lack of cooperation. Finally, the Court advises counsel that gratuitous attacks
and frivolous filings will not be tolerated and may, in fact, be sanctioned, in the Court’s
discretion. Emails and telephone messages between counsel are meant to be timely answered and
certainly not ignored. Cooperation is not optional, and unprofessional behavior will not be
tolerated.

IT IS SO ORDERED.

Dated: August 4, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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