GLOVER v. WASHINGTON MUTUAL BANK, F.A. et al

Filing 410

ORDER that the Order Overruling and Sustaining Plaintiff's Objections (Doc. #381) is VACATED; the objection filed at Doc. # 375 is OVERRULED and objection filed at Doc. #376 is SUSTAINED; the objection (Doc. #384) to the Order Directing Parties to Confer to Select a Special Master (Doc. #364) is OVERRULED and objection (Doc. #384) to the Order Appointing a Special Master (Doc. #373) is OVERRULED in part and SUSTAINED in part. Plaintiff's request that the class certification hearing be postponed is left to the discretion of the Magistrate Judge. Signed by Judge Donetta W. Ambrose on 11/9/11. (laf)

-----------------IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF P:::;NNSYLVANIA

MARY E. GLOVER,
individually and on behalf

of other similarly situated

former and current

homeowners in Pennsylvania,

Plaintiffs,
Civil Action No. 08-990

v.
MARK J. UDREN, UDREN LAW
OFFICES, P.C., WELLS FARGO
HOME MORTGAGE, GOLDMAN SACHS
MORTGAGE COMPANY
Defendants.

ORDER

Much of this case,
in

the

discovery

phase.

On

now over three years old,
September

8,

2011,

the

remains

Magistrate

Judge held an in-chambers conference in an effort to resolve the
voluminous

contested

conference,
would

the Magistrate

consider

persisted in

discovery

appointing

inundating the

motions.

Judge
a

the conclusion of the conference,

the

outset

ma~t<~r

if

the

the
he

parties

with discovery motions.

At

the Magistrate Judge entered

Defendants Udren Law Offices, P.C. and Mark Udren
were not noticed to attend this conference since the
case between these defendants and the plaintiff has
been certified for appeal under Fed. R. Ci~. P. 54(b)
(Doc. ## 268, 270).

1

of

informed the parties 1 that

special
court

At

fifteen (15) orders on the then-outstanding discovery motions.
Despi te the Magistrate Judge's admonition,
6,

2011,

(Doc.

plaintiff

Magistrate
special

True

2C11,

to

his

word,

ordered

Judge

master

11,

motions

(Doc.

362).

October

discovery-related

Fargo filed two motions to compel productic.;1 of documents
360,

on

(8)

Wells

##

and,

eight

defendant

##

350-58),

filed

on October

the

parties

handle

the

discovery

to

on

October
to

12,

confer
matters,

2011,

to

the

select

costs

to

a
be

borne 50% by plaintiff and 50% by defendants (Doc. # 364).
On October 18, 2011,
A.

Willard,

date,
Willard

the

Esq.

as special master

Magistrate

as

the parties agreed to select Mark

special

Judge

master

outstanding as of that date,

(Doc.

ordered
to

11 370).

the

resolve

On that same

appointment

the

discovery

of

Mr.

motions

including certain of those related

to the Udren defendants (Doc. # 373).2
On October 19, 2011, plaintiff filed objections to the
order referring the case to the Special Master
376) .

The

following

day,

plaintiff's

objection

concerning

associated with the

the

Magistrate

appointment

(Doc.

,Judge

## 375 and

overruled

the

allocation

of the

sp;~cial

of

master

the
and

the
cost
the

authority of the special master to enforce previously litigated

In the October 18, 2011 order, the Magis.rate Judge
inadvertently referred a non-discovery motior. (Doc. #
369) to the
al master.
After objectLon by the
plaintiff, the Magistrate Judge withdrew Ue referral
of this motion. (Doc. # 381).

2

---"---,-------------­
discovery

orders

and

sustained

the

objection

inadvertent referral of Motion # 369,

see n.

concerning

2,

supra

the

(Doc.

#

381) .
On

21,

2011,

the

(Doc. # 364)

filed

obj ections

(Order Directing Parties to Confer to Select a

Special Master), October 18, 2011
a

plaint:i ff

# 384) to the Magistrate Judge's Orders dated October 12,

(Doc.
2011

October

Special

Master),

and

# 373)

(Doc.

October

20,

2011

(Order Appointing

#

(Doc.

381)

(Order

Overruling and Sustaining Plaintiff's Objections). On October 28
and November

1,

the

order

referral

summarized
master

did

Magistrate
plaintiff's

as

2011

plaintiff

(Doc.

follows:

1)

not

comport

Judge

did

objections

##

filed

390,
the

398).
order

with

not

Fed.

have

under

addt tional

R.

the

Fed.

Thi::

obj ections

obj ections

ap;)ointing
Civ.

Civ.

special

53;

2)

the

to

rule

on

72(a);

3)

the

P.

P.

can be

the

authority

R.

to

Magistrate Judge improperly referred motions involving the Udren
defendants

to

the

special

master;

improperly referred motions that
and,

5)

parties,

given the di spari ty

had

in the

4)

the

alrec~dy

financial

Magistrate

Judge

been adjudicated,
resources of the

the Magistrate Judge did not consider the fairness

of

imposing 50 % of the expenses of the appointment equally on the
plaintiff.

Plaintiff also requests that the hearing for class

certification,

scheduled

for

November

postponed.
3

1~,

2011,

should

be

Order Appointing Special Master
As it relates to this matter, Rule 53 reads:
Rule 53. Masters
(a) Appointment.
(l) Scope. Unless a statute provides otherwise,

a court may appoint a master only to:

* * *
(C)
address pretrial and posttrial matters

that cannot be effectively and timely addressed

by an available district judge or magistrate

judge of the district.

* * *
(3) Possible Expense or Delay. In appointing a master,
the
court must consider the fairness of imposing the
likely expenses on the parties and mLst protect against
unreasonable expense or delay.
(b) Order Appointing a Master.
(1) Notice. Before appointing a master, the
court must
give the parties notice and an
opportuni ty to be heard. Any party m2.y suggest
candidates for appointment.
Contents. The appointing order :'1ust direct
the
master
to
proceed
with
all
reasonable
diligence and must state:
(2)

(A)
the
master's
duties,
including
any
investigation or enforcement duties,
and any
limits on the master's authority
Jnder Rule
53 (c) ;
(B) the circumstances, if any, in which the
master may communicate ex parte with the court or
a party;

4

(C) the nature of the materials to be preserved
and
filed
as
the
record
of
the
master's
activities;
(0) the time limits, method of filing the record,

other procedures, and standards for r
ewing the

master's orders, findings, and recc'mnendations;

and

(E) the basis, terms, and procedure for fixing

the master's compensation under Rule 53(g).

(3) Issuing.
after:

The

court

may

issue

the

order

only

(A)
the master files an affidavit disclosing

whether there is any ground for disqualification

under 28 U.S.C.
455; and

(B) if a ground is disclosed, the parties, with

the court's approval, waive the disquaiification.

Fed. R Civ. P. 53.
Plaintiff
here

is

contends

substantively

and

that

the

referral

procedurally

order

deficient.

entered
I

have

reviewed the objections and conclude as follows:
First,
appoint a

the

Magistrate

special master,

Judge

pre-advised the

had

the

authority

parties that

to

such an

appointment would occur if they continued tJ saturate the docket
with discovery motions,

and afforded the par ties opportunity to

confer and select a master of their choosing.
Second,

although

complies with Rule 53,

the

referral

order

substantially

it should be amended to include the more

detailed requirements set forth in Rule 53(b).

5

-_._.,-------------­
Third,
motions

involving

overruled.
than

regards
the

the

Udren

referra_

defendants,

Wells

discovery

Fargo
the

from

and
Udren

of

the

the

Although these defendants are

defendants

sought

as

Goldman

discovery

objections

are

a different track

~n

Sachs,

plainti ff

relative

defendan~s

to

has
its

motion for class certification. The special master was appointed
for the purpose of deciding these discovery motions.

Therefore,

the referral of the Udren-related motions was appropriate.
Fourth,

plaintiff

argues

that

the

Magistrate

Judge

erred when it referred motions to the special master that he had
already

decided.

I

first

observe

plaintiff's motions referred to the

that

only

two

the

ten

master request that

specia~

Those twc motions

a prior court order be enforced.

of

(Doc. ## 354

and 355) are inextricably intertwined with the other outstanding
motions and,

therefore,

are properly within the province of the

special master.
Finally,
disparity

in

the

the

plaintiff

financial

complains

resources

of

that,
the

Magistrate Judge did not consider the fairness
of

the

expenses

plaintiff.

I

of

the

conclude,

special

to

the

master

contrary,

given

the

parties,

the

in imposing 50%

appointment
that

the

on

the

Magistrate

Judge's appointment of a special master and the apportionment of
the

related

equities,

costs
balanced

indicates
against

a

thoughtful
the
6

need

consideration of
to

protect

the

against

-'"--,------------­
unreasonable
permits

a

expense

court

or

delay.

I

also

note

to consider the extent

to

that

which

Rule

53(g)

any party

is

more responsible than the other party for the reference to the
master when determining allocation of cost of the referral.
Order Overru

Fed.

R.

aintiff's

and Sust

Civ.

P.

72(a)

governs

ections

magistrate

judges'

disposition of pretrial orders and directs that:
Rule
Order

72.

Magistrate

Judges:

Pretrial

(a) Nondisposi ti ve Matters. When a oretr ial
matter not dispositive of a party's ::laim or
defense is referred to a magistrate Judge to
hear and decide, the magistrate j~dge must
promptly conduct
the
required proceedings
and, when appropriate, issue a wri ttE:~n order
stating the decision. A party may serve and
file objections to the order within 14 days
after being served with a copy. A party may
not assign as error a defect in the order not
timely objected to. The district judge in the
case must
consider timely objections and
modify or set aside any part of the order
that is clearly erroneous or is contrary to
law.
Fed. R. Civ. P. 72(a).
According

to

this

Rule,

the

Magistl:ate

have authority to adjudicate plaintiff's
and

376)

and

the

portions

Overruling and Sustaining
should be vacated.

of

the

Judge

ob~ections

October

20,

Plaintiff's Object:.ons

I have, however,

7

indepence~tly

did

not

(Doc.

## 375

2011

Order

(Doc.

#

381),

considered the

plaintiff's objections and concur with the
the

objection

filed

at

Doc.

#

375

~1agistrate

should

be

Judge that

overruled

and

Overruling

and

objection filed at Doc. # 376 should be sustained.
For these reasons,
IT

IS

HEREBY

ORDERED

that

the

Order

Sustaining Plaintiff's Objections (Doc. # :lEI) is VACATED.
IT IS FURTHER ORDERED the objection filed at Doc. # 375
is OVERRULED and objection filed at Doc. # 376 is SUSTAINED.
IT IS FURTHER ORDERED that the cbJection
to

the

Master

Order
(Doc.

Directing

# 364),

Parties

to

Confer

to

Select

is OVERRULED and objection

the Order Appointing a Special Master

(Doc .

(Doc.

(Doc.

# 373)

a

# 384)
Special

# 384)

to

is OVERRULED

and part and SUSTAINED in part.
Finally,

Plaintiff's

request

that

the

class

certification hearing be postponed is left to the discretion of
the Magistrate Judge.

United States District Judge

8