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Dippel v. South Carolina Farm Bureau Mutual Insurance Co.

United States District Court, D. South Carolina, Florence Division

January 8, 2019

Kenneth D. Dippel, Plaintiff,
South Carolina Farm Bureau Mutual Insurance Company, Defendant.



         Plaintiff Kenneth D. Dippel filed this lawsuit against Defendant South Carolina Farm Bureau Mutual Insurance Company seeking recovery under a standard flood insurance policy. The matter is presently before the Court for consideration of Plaintiff's and Defendant's timely objections to a nondispositive order issued by United States Magistrate Judge Thomas E. Rogers.[1] See ECF Nos. 136, 141, & 147.

         Standard of Review

          A magistrate judge may hear, decide, and issue written orders on nondispositive pretrial matters. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). “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).

         A ruling “is ‘clearly erroneous' when although there is 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 (1948); see also United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (defining “clearly erroneous”). “[A]n order is contrary to law when it fails to apply or misapplies relevant statutes, case law[, ] or rules of procedure.” Guarantee Co. of N. Am. U.S.A. v. Metro Contracting, Inc., No. 2:13-cv-02266-PMD, 2015 WL 402909, at *3 (D.S.C. Jan. 28, 2015) (alteration in original); see also Callahan v. United States, 285 U.S. 515, 517 (1932) (explaining “[t]he phrase ‘contrary to law' as . . . taken in its natural meaning signifies ‘contrary to any law'”). A magistrate judge has broad discretion in resolving nondispositive discovery disputes, and a district court should not overrule the magistrate judge's determination absent an abuse of discretion. Weber v. Jones, No. 8:12-cv-03349-TMC, 2014 WL 1094418, at *1 (D.S.C. Mar. 18, 2014).


         On October 30, 2018, the Magistrate Judge held a hearing on several nondispositive motions, and on November 2, 2018, he issued an order ruling on the motions. See ECF Nos. 122, 132, & 136. Both Plaintiff and Defendant have filed objections to that nondispositive order, as well as responses to each other's objections. See ECF Nos. 141, 147, 150, 154, & 157.

         I. Plaintiff's Objections

         Plaintiff's first objection relates to a motion that he filed in July 2018. See Pl.'s Objs. [ECF No. 141] at pp. 2-7. That motion is captioned “Motion to Take Judicial Notice to Declare Undisputed Facts and to Declare the Peer Review Process Unconstitutional and Unlawful.” See ECF No. 92 (hereinafter, “the Peer Review Motion”).[2] Plaintiff attempted to argue the Peer Review Motion at the October 30 hearing, but the Magistrate Judge stopped him and explained the hearing was limited to discovery-related matters. See Transcript [ECF No. 149] at pp. 28-29 (“[A]s to the validity of the peer review process, whether it's correct or not, that's not something that we're going to decide today. . . . [T]hat's not something that you argue in a discovery motion.”).[3] The Magistrate Judge did not rule on the Peer Review Motion in his order, and Plaintiff contends the Magistrate Judge erred in not doing so. See Pl.'s Objs. at pp. 2-7. However, the Court concludes the Magistrate Judge properly exercised his discretion in not ruling on the Peer Review Motion when taking up discovery matters, and this decision is not clearly erroneous or contrary to law. The Peer Review Motion still remains pending, see ECF No. 92, and at the appropriate time the Magistrate Judge will either rule on it or enter a report and recommendation for this Court's review. Plaintiff's first objection is premature.

         Plaintiff's second objection concerns the Magistrate Judge's ruling on a motion to quash filed by nonparties Donan Engineering Company, Inc. and Christopher Scallion, and more specifically, the Magistrate Judge's ruling regarding a laptop computer that Scallion used when investigating Plaintiff's flood damage claim. See Pl.'s Objs. at pp. 7-13. Because Donan and Scallion had asserted they were no longer in possession of the laptop, the Magistrate Judge ordered, inter alia, the following:

Laptop computer: Donan is directed to provide an affidavit setting forth Donan's standard protocol for replacing laptop computers, the reason the specific laptop computer at issue here was replaced, when it was replaced, and what was done with the laptop itself. Also, the affidavit should include an explanation of what information and contents contained on the laptop were stored and preserved and in what format. Additionally, Donan and Scallion should produce any correspondence or written communication associated with the return and replacement of the laptop and the preservation of its contents.

ECF No. 136 at pp. 4-5. Plaintiff contends the Magistrate Judge's order “should be amended by ordering the Defendant and . . . Donan Engineering and Christopher Scallion to produce the working lap top and make it available for a computer forensic inspection . . . .” Pl.'s Objs. at pp. 9-10. However, while Donan and Scallion assert they no longer have the actual/physical laptop device because it was decommissioned due to age, their counsel explained at the October 30 hearing that this issue was “a red herring” because “all of the information that could have been gleaned from that laptop has already been downloaded and provided by Mr. Scallion.” Tr. at p. 11. The Court finds the Magistrate Judge's ruling regarding the laptop and its electronically stored contents sufficiently requires Donan and Scallion to account-via affidavit and otherwise-for the unavailability of the laptop itself, and that ruling is neither clearly erroneous nor contrary to law.[4]

         Plaintiff's third objection concerns the Magistrate Judge's ruling on Plaintiff's motion to compel a nonparty, Torrent Technologies, to produce items requested in a subpoena that Plaintiff served on Torrent. See Pl.'s Objs. at pp. 13-15. However, as the Magistrate Judge's order correctly indicates, Plaintiff must make this motion in the District of Montana, where Torrent Technologies is located and where the discovery was supposed to occur. See Fed. R. Civ. P. 37(a)(2) (“A motion for an order [compelling disclosure or discovery] to a nonparty must be made in the court where the discovery is or will be taken.”); see, e.g., In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2016 WL 756485, at *2 (S.D. W.Va. Feb. 25, 2016) (“[T]he subpoenas served on [the nonparties] were issued by this court, but the depositions and document production were to occur in Orlando, Florida. Consequently, the district of production and compliance was the Middle District of Florida, and a motion to compel . . . would normally be filed in that district court.”).

         Plaintiff's final objection relates to the Magistrate Judge's denial without prejudice of Defendant's Motion to Waive Mediation Requirement. See Pl.'s Objs. at pp. 15-16. Plaintiff contends the Magistrate Judge should have denied this motion with (not without) prejudice. However, as ...

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