Turner v. City of Memphis

Filing 110

ORDER overruling Turner's objection 91 to the Magistrate Judge's award of attorneys' fees 87 . Signed by Judge Samuel H. Mays, Jr on 02/04/2019. Modified on 2/4/2019 (tjo).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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THEYER ANN TURNER,
Plaintiff,

v.
THE CITY OF MEMPHIS,
Defendant.

No. 17-2447

ORDER

On October 9, 2018, United States Magistrate Judge Diane K.
Vescovo issued an order awarding Defendant the City of Memphis
(the “City”) expenses and attorneys’ fees.

(ECF No. 81.)

Before

the Court is Plaintiff Theyer Ann Turner’s October 18, 2018
objection to that order.
November 1, 2018.

(ECF No. 91.)

The City responded on

(ECF No. 92.)

For the following reasons, Turner’s objection is OVERRULED.
The Magistrate Judge’s order is AFFIRMED.

I.

Background
Turner filed the Complaint on August 15, 2017.

1.)

(ECF No.

She alleges that her employer, the City, violated her rights

under: (1) Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §§ 2000e, et seq.; (2) the Family Medical Leave Act,
29

U.S.C.

§§

2601,

et

seq.;

and

(3)

the

Americans

with

Disabilities Act, as amended, 42 U.S.C. §§ 12101, et seq. (See
id.)
On July 16, 2018, the City filed a Motion to Compel and for
Sanctions.

(ECF No. 58.)

The City sought to compel responses

to certain discovery requests and asked the Court to sanction
Turner for her alleged failure to comply with a previous court
order and the Federal Rules of Civil Procedure.

(See id.)

The

Court referred the City’s motion to the Magistrate Judge for
determination.

(ECF

No.

59.)

On

September

4,

2018,

the

Magistrate Judge granted the City’s motion in part and denied it
in part (the “September 4 Order”).

(See ECF No. 76.)

The

Magistrate Judge found that “[t]he imposition of expenses against
[Turner], including attorney fees, is warranted to compensate
the City for the expenses incurred in bringing this motion.”
(Id. at 608.) The Magistrate Judge directed the City’s attorneys
to

file

affidavits

verifying

their

expenses,

including

attorneys’ fees, within fourteen days, and ordered Turner to

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file any objections to the City’s affidavits within seven days
of service of each affidavit.

(Id.)

The City’s attorneys filed affidavits claiming expenses on
September 18, 2018.
September 24, 2018.

(ECF Nos. 79, 80.)

Turner responded on

(ECF No. 81.)

On October 9, 2018, the Magistrate Judge ordered Turner to
pay $4800.00 in attorneys’ fees to the City (the “October 9
Order”).

(ECF No. 87.)

On October 18, 2018, Turner filed an objection to the
Magistrate Judge’s October 9 Order.
II.

(ECF No. 91.)

Standard of Review
Congress enacted 28 U.S.C. § 636 to relieve the burden on

the federal judiciary by permitting the assignment of district
court duties to magistrate judges.

See United States v. Curtis,

237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States,
490 U.S. 858 (1989)).

The Court has the authority to refer

certain pretrial matters to a magistrate judge for resolution.
See 28 U.S.C. § 636(b); Callier v. Gray, 167 F.3d 977, 980 (6th
Cir. 1999). Those referrals may include non-dispositive pretrial
matters,

such

as

a

motion

to

compel.

See

28

U.S.C.

§ 636(b)(1)(A).
The Court has appellate jurisdiction over any decisions the
magistrate judge issues pursuant to a non-dispositive referral.
See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72.
3

If the magistrate

judge issues a non-dispositive pretrial order, the district court
should defer to that order unless it is “found to be clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a); see Massey v. City of Ferndale, 7 F.3d 506, 509
(6th Cir. 1993).
The September 4 Order addressed the imposition of discovery
sanctions and the production of documents.

(See ECF No. 76.)

The October 9 Order addressed the amount of attorneys’ fees to
be awarded.

(See ECF No. 87-1.)

Because both orders addressed

non-dispositive pretrial motions, the Court must defer to the
Magistrate Judge’s conclusions unless they are clearly erroneous
or contrary to law.

See Massey, 7 F.3d at 508 (the general rule

is that a “motion for attorneys fees and costs is deemed to be
a non-case dispositive, factual matter and, as such, the standard
to be applied” is “whether the Magistrate Judge’s ruling is
clearly erroneous”) (internal quotation marks omitted).
“The clearly erroneous standard applies only to factual
findings made by the Magistrate Judge, while legal conclusions
will

be

reviewed

standard.”

under

the

more

lenient

contrary

to

law

E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F.

Supp. 2d 603, 605 (W.D. Tenn. 2009) (internal quotation marks
omitted).

Under the clearly erroneous standard for findings of

fact, the Court need only consider whether any evidence or
showing exists to support the Magistrate Judge’s finding and
4

whether the finding was reasonable.

See Tri–Star Airlines, Inc.

v. Willis Careen Corp. of Los Angeles, 75 F. Supp. 2d 835, 839
(W.D. Tenn. 1999) (citations omitted).

“When examining legal

conclusions under the ‘contrary to law’ standard, the Court may
overturn ‘any conclusions of law which contradict or ignore
applicable

precepts

of

law,

statutes, or case precedent.’”

as

found

in

the

Constitution,

Doe v. Aramark Educ. Res., Inc.,

206 F.R.D. 459, 461 (M.D. Tenn. 2002) (quoting Gandee v. Glaser,
785 F. Supp. 684, 686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th
Cir. 1994)); see also 32 Am. Jur. 2d Fed. Cts. § 140 (2018) (“A
magistrate judge’s order is contrary to law when it fails to
apply or misapplies relevant statutes, case law, or rules of
procedure”).
III.

Analysis
Federal Rule of Civil Procedure 37 provides that, if a

motion to compel discovery is granted in part and denied in part,
“the court . . . may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion.”

Fed. R. Civ.

P. 37(a)(5)(C).
The September 4 Order granted in part and denied in part
the City’s motion to compel and awarded expenses and attorneys’
fees to the City.

(See ECF No. 76.)

Brandy Parrish and Allan

Wade, the attorneys for the City, represented that they had
worked a combined 32.6 hours to prepare the motion to compel,
5

and they claimed an hourly rate of $300.00.
80.)

(See ECF Nos. 79,

They claimed a total award of $9600.00 in attorneys’ fees.

(Id.)

The

Magistrate

Judge

found

the

hourly

rate

to

be

reasonable but determined that some of the services rendered
were unnecessary.

(See ECF No. 87-1 at 679.)

The Magistrate

Judge noted that the City did not prevail on all of the arguments
in its motion to compel, and that some of its requests were
granted in part and denied in part.
“roughly

half

of

the

City’s

(Id. at 680.)

arguments”

were

Finding that
granted,

the

Magistrate Judge awarded the City $4800.00, half of the total
amount claimed.
Turner

(Id.)

argues

that

“she

documents from production.”

has

at

no

time

withheld

(ECF No. 91 at 688.)

any

She contends

that the City “did not prevail on one-half of the issues in the
Motion as the Magistrate Judge has found.”
quotation marks omitted).)

(Id. at 689 (internal

Turner represents: “[T]he motion to

compel resulted in no additional documents.

Plaintiff does not

have the financial ability to pay the fees awarded.
acted willfully.
been cooperative.”

She has been cooperative.

She has not

Her attorney has

(Id.)

The City makes three arguments: (1) Turner’s objection to
the imposition of discovery sanctions is untimely; (2) the
September 4 Order awarding expenses and attorneys’ fees is not
clearly erroneous or contrary to law; and (3) the October 9 Order
6

setting the amount of attorneys’ fees is not clearly erroneous
or contrary to law.

(See ECF No. 92.)

A. Timeliness
The City argues that Turner did not file a timely objection
to the September 4 Order.

(See ECF No. 92 at 693.)

The City

contends that Turner’s objection is timely only as to the October
9 Order determining the amount of attorneys’ fees.
692.)

(See id. at

The City represents that Turner “may not challenge” the

Magistrate

Judge’s

determination

that

it

is

entitled

to

attorneys’ fees “or the findings upon which [the September 4
Order] is based.” (Id. at 693.)
Turner did not file an objection to the September 4 Order
within fourteen days.

Objections not brought within fourteen

days of a Magistrate Judge’s order are usually deemed waived.
See Fed. R. Civ. P. 72(a) (“A party may not assign as error a
defect

in

the

order

not

timely

objected

to.”);

Local

Rule

72.1(g)(1)); Kluck v. Chater, 98 F.3d 1342 (6th Cir. 1996).
The Sixth Circuit has held, however, that “a party shall be
informed by the magistrate that objections must be filed within
[the necessary time period] or further appeal is waived.” United
States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
Supreme

Court

affirmed

the

constitutionality

of

the

The
Sixth

Circuit’s rule in Thomas v. Arn, holding that “[s]uch a rule, at
least when it incorporates clear notice to the litigants and an
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opportunity to seek an extension of time for filing objections,
is a valid exercise of the supervisory power . . . .”

474 U.S.

140, 155 (1985) (emphasis added).
Although the September 4 Order advised Turner that she could
object to the amounts the City’s attorneys requested (see ECF
No. 92 at 692), the Order did not notify Turner of her right to
object to the imposition of an award of attorneys’ fees. Because
the September 4 Order did not contain the necessary notice,
Turner has not waived her right to object to the Magistrate
Judge’s determination that the City is entitled to attorneys’
fees.

See Mattox v. City of Forest Park, 183 F.3d 515, 520 (6th

Cir. 1999).
B. Objection to the September 4 Order
In the September 4 Order, the Magistrate Judge found that
“[t]he

imposition

of

expenses

against

[Turner],

including

attorney fees, is warranted to compensate the City for the
expenses incurred in bringing this motion.”

(Id. at 608.)

Turner argues that an award of attorneys’ fees is improper
because

“she

production.”

has

at

no

time

withheld

(ECF No. 91 at 688.)

any

documents

from

Turner contends that she

either electronically produced or made available for inspection
all requested documents.

(See id.)

She represents that the

City “simply did not come to [Turner’s] attorney’s office until

8

after the hearing by the Magistrate Judge” to view the documents
she made available for inspection. (Id. at 689.)
Turner made those arguments to the Magistrate Judge, (see
ECF No. 68 ¶¶ 8—11), and the Magistrate Judge did not accept
them.

The Magistrate Judge held a hearing on the City’s Motion

to Compel on August 22, 2018.

(ECF No. 72.)

The Magistrate

Judge found that Turner had not produced all requested documents
and that Turner did not produce certain requested documents until
August 27, 2018, after the hearing.

(See ECF No. 76 ¶¶ 2, 15.)

Turner submits no evidence to show the Magistrate Judge’s
findings were erroneous.

The burden is on the objecting party

to “pinpoint those portions of the magistrate's report that the
district court must specifically consider.”

Mira v. Marshall,

806 F.2d 636, 637 (6th Cir. 1986) (per curiam).

A magistrate

judge's decision must be clearly erroneous before this Court can
modify

it

or

deferential.”

set

it

aside.

This

standard

is

“extremely

Reko v. Creative Promotions, Inc., 70 F. Supp. 2d

1005, 1007 (D. Minn. 1999).

The Magistrate Judge's finding is

plausible, and Turner has produced no evidence to contradict it.
The

Magistrate

Judge’s

factual

findings

underlying

the

imposition of discovery sanctions are not clearly erroneous.
Turner does not argue that the imposition of discovery
sanctions “fails to apply or misapplies relevant statutes, case
law, or rules of procedure.”

32 Am. Jur. 2d Fed. Cts. § 140
9

(2018).

Federal Rule of Civil Procedure 37 allows the court to

impose discovery sanctions when a motion to compel is granted in
part and denied in part.

See Fed. R. Civ. P. 37(a)(5)(C).

The

imposition of attorneys’ fees in the September 4 Order is not
contrary

to

law.

Turner’s

objection

to

the

imposition

of

attorneys’ fees is OVERRULED.
C. Objection to the October 9 Order
On October 9, 2018, the Magistrate Judge awarded the City
one-half

of

its

claimed

attorneys’

fees

because

prevailed on “roughly half” of its arguments.
1.)

the

City

(See ECF No. 87-

Turner argues that the amount is excessive because the City

“did not prevail on one-half of the issues in the motion as the
Magistrate Judge found.”
marks omitted).)

(ECF No. 91 at 689 (internal quotation

The City contends that the Magistrate Judge’s

finding “is not clearly erroneous, and in fact, greatly favors”
Turner.

(ECF No. 92 at 698.)

The City represents that “twenty-

one of [the City’s] twenty-four requests at issue were either
granted or denied as moot because discovery was provided after
the motion to compel was filed.”

(Id. at 699.)

Under Federal Rule of Civil Procedure 37(a)(5)(C), if a
motion to compel is not granted in full, the court may apportion
reasonable expenses.

See Fed. R. Civ. P. 37(a)(5)(C).

The Court

need not quantify the relief granted to the City. “[A]ttorneys’
fee

findings

need

not

be

infinitely
10

precise,

deluged

with

details, or even fully articulated.”

Vicor Corp. v. Vigilant

Ins. Co., 674 F.3d 1, 20 (1st Cir. 2012) (internal quotation
omitted).

The Magistrate Judge gave an adequate basis for her

decision and acted within her discretion.
attorneys’

fees

in

the

October

erroneous nor contrary to law.

9

Order

The apportionment of
is

neither

clearly

Turner’s objection to the amount

of attorneys’ fee awarded is OVERRULED.
IV.

Conclusion
For the foregoing reasons, Turner’s objection is OVERRULED.

The Magistrate Judge’s order is AFFIRMED.

So ordered this 4th day of February, 2019.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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