Case et al v. Plantation Title Company Inc et al
Filing
251
ORDER Appointing Special Master Signed by Honorable David C Norton on 12/9/14. (Attachments: # 1 Joint Report, # 2 Special Master Affidavit)Associated Cases: 9:12-cv-02518-DCN-WWD, 9:12-cv-02804-DCN(elim, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
DAVID CASE, SHARON CASE, JAY D.
SMITH, DANA SMITH, CHARLES
NICHOLS, DIANE NICHOLS, LAURIE
STITHEM, and KENNETH STITHEM,
each individually and on behalf of a class
similarly situated,
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)
)
)
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)
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Plaintiffs,
)
)
v.
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FRENCH QUARTER III LLC, RESORT )
FUNDING LLC, SOUTHWIND
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MANAGEMENT CORP., SOUTHWIND )
HOLDINGS INC., KEN TAYLOR, BRIAN )
TAYLOR, and SPINNAKER
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DEVELOPMENT CORP INC.,
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Defendants.
)
)
DAVID CASE, SHARON CASE, JAY D. )
SMITH, DANA SMITH, CHARLES E.
)
NICHOLS, DIANE E. NICHOLS, LAURIE )
STITHEM, KENNETH STITHEM,
)
WILLARD D. MANN, and LA MAY
)
MANN, each individually and on behalf
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of a class similarly situated,
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Plaintiffs,
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)
v.
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PLANTATION TITLE COMPANY INC, )
CHICAGO TITLE INSURANCE
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COMPANY, THE QUALEY LAW FIRM )
PA, and JOHN P. QUALEY, JR.,
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Defendants.
)
)
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No. 9:12-cv-02804-DCN
No. 9:12-cv-02518-DCN
ORDER APPOINTING SPECIAL
MASTER
On November 25, 2014, the court filed a notice of intent to appoint a special
master and attached a proposed order. The court instructed the parties to confer
concerning the contents of the appointment order and submit a joint report to the court.
The parties submitted a joint report to the court on Friday, December 5, 2014. A copy of
the joint report is attached hereto as Exhibit A. The parties agreed on the contents of the
proposed order; however, they wish to continue to work with the current mediator, Tom
Wills, in their efforts to reach a settlement agreement and ask the court to retain the
motion for class certification. Accordingly, the parties are permitted to work with Tom
Wills who will continue to facilitate settlement negotiations. Further, the court will not
refer the motion to for class certification to the special master. Because the parties
consented to the proposed order, there is no need to conduct a hearing on the matter. It is
hereby ORDERED as follows:
The court appoints J. Rutledge Young, Jr. pursuant to Federal Rule of Civil
Procedure 53 to serve as a special master over all pre-trial matters and motions in this
case, including all pending motions before this court, discovery matters, excluding the
motion for class certification.
Rule 53(a)(1)(C) permits a district court to appoint a special master to address
pretrial matters that cannot be effectively and timely addressed by an available district
judge or magistrate judge of the district. Further, beyond the provisions of Rule 53,
district courts have the inherent power to appoint a special master for the administration
of justice “when deemed by it essential.” Trull v. Dayco Products, LLC, 178 F. App’x
247, 251 (4th Cir. 2006) (citing United States v. Connecticut, 931 F.Supp. 974, 984 (D.
Conn. 1996)). The special master is “to proceed with all reasonable diligence.” Fed. R.
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Civ. P. 53(b)(2). In the performance of his duties, the special master shall observe the
Code of Conduct for United States Judges insofar as it applies to him. Code of Judicial
Conduct for United States Judges, 69 F.R.D. 273, 286 (1975).
I. Duties of the Special Master
Pursuant to this order, the special master shall have all the powers set forth in
Rule 53(c). He shall: “(A) regulate all proceedings; (B) take all appropriate measures to
perform the assigned duties fairly and efficiently; and (C) if conducting an evidentiary
hearing, exercise the appointing court’s power to compel, take, and record evidence.”
The parties shall provide the special master with copies of all motion papers and other
documents relevant to this dispute. The special master shall review the briefs and
declarations of the parties on the pending motions and hear oral argument. The special
master shall then prepare and file a report on the recommended findings and rulings for
each motion with this court. The procedure for review of the special master’s
recommendations is outlined below. The clerk will then enter the report or
recommendation on the docket.
The special master shall supervise document discovery with respect to claims of
confidentiality and privilege. When necessary, he shall make recommendations to the
court regarding the determination of disputes that may arise in connection with privilege
and confidentiality matters. For purposes of this review effort, the special master shall be
deemed an officer of the court, such that his access will not give rise to a waiver of
privilege claims.
II. Document Review Process
The special master may review all documents deemed necessary for adjudication
of the matters before him. The parties will provide any assistance required or requested
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by the special master to facilitate the review process including producing and arranging
documents in a manner that will ease the burden of review. During the course of the
review process, the special master and his designee(s) shall have access to all materials to
which the parties have asserted privilege claims.
III. Ex Parte Communications
Rule 53(b)(2)(B) directs the court to set forth the circumstances in which the
special master may communicate ex parte with the court or a party. The special master,
without notice to the parties, may communicate ex parte with the court regarding
logistics, the nature of his activities, management of the litigation, and other procedural
matters. The special master may communicate ex parte with any party or their counsel,
as the special master deems appropriate, for the purposes of ensuring the efficient
administration and management and oversight of this case, and for the purpose of
mediating or negotiating a resolution of any dispute related to the case. The special
master shall not communicate to the court any substantive matter the special master
learns during an ex parte communication between the special master and any party.
IV. Special Master Record
Rule 53(b)(2)(C) states that the court must define “the nature of the materials to
be preserved and filed as a record of the [special master’s] activities.” The special master
shall maintain normal billing records of his time spent on this matter, with reasonably
detailed descriptions of his activities. After reviewing the parties’ documents and hearing
oral arguments, the special master shall submit his reports or recommendations in
writing, for filing on the case docket.
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V. In Camera Review
The special master shall review in camera all disputed documents and
information. Counsel for the parties shall designate an attorney or attorneys to be
available to the special master to answer any questions that the special master may have
regarding these documents. For purposes of this review effort, all such persons shall be
deemed officers of the court, such that their access will not give rise to a waiver of any
privilege or confidentiality claims.
Because this process is necessarily ex parte, all oral communications shall be
recorded by a court reporter. The defendants and plaintiffs shall be equally responsible
for the court reporter’s fees. All transcripts shall be filed under seal. The parties may
submit written briefing to supplement the in camera review process if such briefing is
requested by the special master or the court. All such written submissions shall be filed
under seal.
VI. Review of Special Master’s Orders and Findings/Recommendations
Rule 53(b)(2)(D) directs the court to state “the time limits, method of filing the
record, other procedures, and standards for reviewing the [special master’s] orders,
findings, and recommendations.” The special master shall reduce any formal order,
finding, report, ruling, or recommendation to writing and file it electronically on the case
docket. Fed. R. Civ. P. 53(d). The court must then give the parties notice and an
opportunity to be heard after the master issues its order. In reviewing the master’s order,
the court may receive evidence, and may “adopt or affirm, modify, wholly or partly reject
or reverse or resubmit to the master with instructions.” Fed. R. Civ. P. 53(f)(1).
Any party objecting to a recommendation or order by the special master must
notify the special master, the court, and all other interested parties of its intention to raise
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an objection (by facsimile or electronic mail) within five business days after receiving the
special master’s written recommendation. Thereafter, said objection must be raised with
the court within twenty days of the receipt (by facsimile or electronic mail) of the special
master’s written recommendation or order. If no party submits an intention to challenge
the special master’s written recommendation or order within five business days, the court
may adopt the recommended ruling as its order on the disputed issue. This five day
period may be extended to ten calendar days by consent of the parties or application to
special master when a party’s lead or liaison counsel is unavailable due to a conflict (for
example, but not limited to, trials and hearings) or other good cause.
The court will review all objections to any finding, report, or recommendation of
the special master de novo. Fed. R. Civ. P. 53(f)(3). Further, the court will decide de
novo all objections to conclusions of law made or recommended by the special master, as
well as all objections to findings of fact made or recommended by the special master.
Fed. R. Civ. P. 53(f)(3), (4). The court will set aside the special master’s rulings on
procedural matters only for abuse of discretion. Fed. R. Civ. P. 53(f)(5).
VII. Compensation of Special Master
Rule 53(b)(2)(E) states that the court must set forth “the basis, terms and
procedure for fixing the [special master’s] compensation.” The special master shall be
compensated at his current rate of $400.00 per hour, with defendants bearing 50%
percent of the cost and plaintiffs bearing 50% of the cost. The special master’s fee is
based on his experience, the complexity of this case, and his normal hourly rate. The
special master shall incur only such fees and expenses as may be reasonably necessary to
fulfill his duties under this order or such other orders as the court may issue. The court
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has “consider[ed] the fairness of imposing the likely expenses on the parties and [has
taken steps to] protect against unreasonable expense or delay.” Fed. R. Civ. P. 53(a)(3).
In the event it shall be more economical for the special master to utilize other
members of his firm for matters that do not require his particular attention, the firm shall
be compensated at the rate of $275.00 per hour for associate attorneys and $125.00 per
hour for legal assistants, with defendants bearing 50% percent of the cost and plaintiffs
bearing 50% of the cost.
The special master shall maintain normal billing records of time spent on this
matter with reasonably detailed descriptions of his activities. Upon the court’s request,
the special master shall submit a written formal report of his activities for filing in these
coordinated proceedings.
VIII. Nature of Materials to Be Preserved and Filed as Record of Master’s
Activities Pursuant to Fed. R. Civ. P. 53(b)(2)(C).
The special master shall preserve all materials which would be necessary for the
court to make a de novo review of any decision, including: materials reviewed by him in
camera; the parties’ arguments and submissions; any transcripts made in the course of his
performance; and his time records, billings, and payments.
The special master shall file, under seal when appropriate, his decisions and his
report of activities as stated in Section V and Section VIII.
IX. Term of Appointment
The appointment of the Special Master shall extend from the date of this order
through the completion of this litigation. The reappointment of the Special Master and
the allocation of his fees among plaintiffs and defendant may hereafter be reviewed at the
request of any party.
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X. Affidavit
Rule 53(b)(3)(A) requires a special master to submit, before his appointment, an
affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. §
455. A copy of the special master’s affidavit is attached to this order as Exhibit B. The
special master and the parties shall notify the court immediately if they become aware of
potential grounds for disqualification.
XI. Conclusion
As outlined above, the court appoints J. Rutledge Young, Jr. to serve as special
master in all pre-trial matters and motions, excluding the motion to certify class.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
December 9, 2014
Charleston, South Carolina
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