HARRIS et al v. KELLOGG BROWN & ROOT SERVICES, INC.

Filing 466

ORDER indicating that upon consideration of the Motion to Strike Report of Neutral filed by mediator David B. White, Esquire 465 , it is hereby ordered that said Motion 465 is granted, in part, and denied, in part. Said Motion is granted to the extent that the Report of Neutral filed by Mr. White on 12/30/16 will be stricken from the record. However, said Motion is denied insofar as Mr. White asks that the Court strike the standard Administrative Closeout Order entered in this matter, aside from the reference to his being a "court-appointed neutral," which is stricken from the Order (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 1/5/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHERYL A. HARRIS, Co-Administratrix
of the Estate of RYAN D. MASETH,
deceased, and DOUGLAS MASETH,
Co-Administrator of the Estate of RYAN
D. MASETH, deceased,
Plaintiffs,
v.
KELLOGG, BROWN & ROOT
SERVICES, INC.,
Defendant.

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Civil Action No. 08-563
Judge Nora Barry Fischer

ORDER OF COURT
AND NOW, this 5th day of January, 2017, upon consideration of the Motion to Strike
Report of Neutral filed by mediator David B. White, Esquire, (Docket No. [465]),
IT IS HEREBY ORDERED that said Motion [465] is GRANTED, in part, and DENIED,
in part. Said Motion is granted to the extent that the Report of Neutral filed by Mr. White on
December 30, 2016 will be stricken from the record. However, said Motion is denied insofar as
Mr. White asks that the Court strike the standard Administrative Closeout Order entered in this
matter, aside from the reference to his being a “court-appointed neutral,” which is stricken from
the Order.
In so holding, the Court notes that the filing of a Report of Neutral by a mediator
appointed by the Court under the ADR Program is required by Rule 3.10 of the Court’s ADR
Policies and Procedures which states that:
3.10 REPORT OF THE NEUTRAL
Within five (5) days of the conclusion of the mediation, the
mediator must electronically file the “Report of Neutral” which
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includes the caption and case number, the date of the mediation,
whether any follow up is scheduled, whether the case resolved in
whole or in part, and any stipulations the parties agree may be
disclosed.
See

ADR

Policies

and

Procedures,

effective

February

1,

2012,

available

at:

http://www.pawd.uscourts.gov/sites/pawd/files/ADRPolicies.pdf (last visited 1/4/17). Notably,
the Neutral’s duty to submit the Report of Neutral to the Court under Rule 3.10 is not contingent
on the consent of the parties. Here, as Mr. White was not officially re-appointed by the Court to
mediate this dispute in December of 2016, and was reengaged by the parties outside the ADR
Program, this provision did not require him to file the Report of Neutral.1 However, it is helpful
to the Court’s administration of its docket to receive reports from private neutrals that matters are
resolved, particularly in cases where numerous motions are pending for disposition by the Court.
Indeed, without such reports, the Court may expend significant judicial resources unnecessarily
analyzing motions that are mooted by actions outside of the Court’s control.
In the present motion, Mr. White advises that the Report of Neutral was mistakenly filed
without the “express permission from counsel for the respective parties to file said Report.”
(Docket No. 465 at ¶ 3). Given his request and the lack of an affirmative duty to file the Report
of Neutral, the Court will strike his report and the corresponding reference to his being a courtappointed neutral in the Administrative Closeout Order. However, aside from that erroneous
reference, Mr. White lacks standing to challenge the entry of the Administrative Closeout Order

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To this end, Mr. White was appointed by the Court to mediate this matter in January of 2016 and he held a
mediation session with the parties in February of 2016 after which he reported to the Court that the matter did not
resolve. (Docket Nos. 358, 380). Hence, his service as a court-appointed neutral was concluded at that time. In
December of 2016, Mr. White was reengaged by the parties to mediate this matter without the Court’s involvement
or the entry of a second referral order.

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which expressly provides that “nothing contained in this Order shall be considered a dismissal or
disposition of this action, and, that should further proceedings therein become necessary or
desirable, either party may initiate them in the same manner as if this Order had not been
entered.” (Docket No. 464).2

s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
cc/ecf: All counsel of record.

2

In nearly 10 years on the Bench, the Court does not recall entertaining any objections to the language of the
standard Administrative Closeout Order.

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