United States District Court, D. South Carolina, Florence Division
Kenneth D. Dippel, Plaintiff,
South Carolina Farm Bureau Mutual Insurance Company, Defendant.
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
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. See ECF Nos. 136, 141, & 147.
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).
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,
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.
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”). 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.”). 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.
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
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.
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
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 ...