Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dippel v. South Carolina Farm Bureau Mutual Insurance Co.

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

August 26, 2019

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

          ORDER

          Bryan Harwell, Chief United States District Judge.

         Plaintiff Kenneth D. Dippel (“Dippel”) filed this lawsuit against Defendant South Carolina Farm Bureau Mutual Insurance Company (“SC Farm Bureau”) seeking recovery under a standard flood insurance policy. The matter is presently before the Court for consideration of Dippel's timely objections to a nondispositive order issued by United States Magistrate Judge Thomas E. Rogers, III.[1]ECF Nos. 213, 217-1.

         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. United States 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 North America USA 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).

         Discussion

         On July 26, 2019, the Magistrate Judge issued an Order ruling on a number of nondispositive motions. ECF No. 213. The Order ruled on: 1) Dippel's motions to take judicial notice to declare undisputed facts and to declare the peer review process unconstitutional and unlawful, ECF Nos. 92; 188; 2) S.C. Farm Bureau's motion to strike, ECF No. 185; 3) Dippel's motions for sanctions, ECF Nos. 196; 197; 4) Dippel's motion to strike, ECF No. 198; and 5) Dippel's requests for subpoenas, ECF Nos. 143; 152; 176; 195; 205. ECF No. 213. Dippel timely filed objections to the Magistrate Judge's Order; the Clerk of Court entered Dippel's objections on August 7, 2019. ECF No. 217-1.[2] S.C. Farm Bureau filed a response on August 19, 2019. ECF No. 228. Non-parties Donan Engineering (“Donan”) and Christopher M. Scallion (“Scallion”) filed a response August 21, 2019. ECF No. 232. Accordingly, this matter is now ripe for decision.

         Dippel first objects the Magistrate Judge erred in denying his motions to take judicial notice to declare undisputed facts and to declare the peer review process unconstitutional and unlawful. ECF No. 217-1 at 3-12. The Magistrate Judge held it would be inappropriate to take judicial notice of Dippel's purported facts because said facts were disputed. ECF No. 213 at 1-3. The Magistrate Judge also found Dippel failed to provide support for his argument the peer review process involved in preparing the engineering report on his property was unconstitutional. Id. at 3-4. For those reasons, the Magistrate Judge denied Dippel's motions to take judicial notice to declare undisputed facts and to declare the peer review process unconstitutional and unlawful. Id.

         Dippel avers his facts are not in dispute, are not hearsay, and that he is not asking the Court merely to authenticate documents. ECF No. 217-1 at 7. Accordingly, Dippel asserts the Court should take judicial notice of the facts underlying his claim that the peer review process used in generating the engineering report at issue is unconstitutional. Id. at 6-7.

         A Court may take judicial notice of facts which are “not subject to reasonable dispute” because they are either generally known within the jurisdiction, or can be “accurately and readily determined” from an accurate source. Fed.R.Civ.P. 201(b). A “tradition of circumspection” surrounds the taking of judicial notice, however, such that judicial notice has traditionally been reserved to those matters “beyond reasonable controversy.” Fed.R.Civ.P. 201 advisory committee's note to subdivision (b) 1972 proposed rules. As the Magistrate Judge states: “[i]t is safe to say that the facts for which Plaintiff seeks judicial notice are far from beyond reasonable controversy.” ECF No. 213 at 3. The Court thus finds the Magistrate Judge's holding regarding judicial notice is neither clearly erroneous nor contrary to law. For that reason, the Court will overrule Dippel's objection to the Magistrate Judge's Order on the issue of judicial notice.

         Dippel next argues the Court should declare unconstitutional the peer review process used in generating the engineering report. ECF No. 217-1 at 3-12. As the Magistrate Judge correctly notes, Dippel “cites no authority supporting a conclusion that the peer review process is unconstitutional or unlawful.”[3] , [4] ECF No. 213 at 4. Accordingly, the Court finds the Magistrate Judge's denial of Dippel's motion to declare the peer review process unconstitutional and unlawful is neither clearly erroneous nor contrary to law, and Dippel's objection to this ruling is thus due to be denied.

         Dippel next objects to the Magistrate Judge granting in part S.C. Farm Bureau's motion to strike. ECF No. 217-1 at 12-15. The Magistrate Judge granted S.C. Farm Bureau's motion to strike as to the Pro-Lab Certificate and Report of Mold Analysis (“Mold Report”) because Dippel failed to disclose it, and as to a letter/report from Forensic Analysis and Engineering (“FAER”) because Dippel failed to timely disclose this expert report. ECF No. 213 at 6-9.

         Dippel raises five objections to the Magistrate Judge striking the Mold Report and the FAER. ECF No. 17-1 at 12-15. Dippel first argues the Magistrate Judge improperly struck these items under Fed.R.Civ.P. 26 and Fed.R.Civ.P. 37 when S.C. Farm Bureau brought its motion to strike under Fed.R.Civ.P. 12(f). Id. at 12-13. Dippel next claims discovery is ongoing in the case, such that he may still supplement his filings. Id. at 13. Dippel also advances the proceedings before the Magistrate Judge are a separate case from the one before the District Judge. Id. at 13-14. Dippel states he filed a request to amend the Scheduling Order. Id. at 14. Finally, Dippel argues he is submitting the FAER not just as an expert report, but as an offer of proof. Id. at 14-15. As detailed below, all Dippel's arguments are without merit.

         Dippel is correct that S.C. Farm Bureau brought its motion to strike pursuant to Fed.R.Civ.P. 12(f). ECF No. 185 at 2. As the Magistrate Judge correctly noted, however, that rule applies to motions to strike pleadings, and the items S.C. Farm Bureau sought to strike were not pleadings. ECF No. 213 at 4; see Fed. R. Civ. P. 12(f) (“The court may strike from a pleading . . . .”); see also Fed. R. Civ. P. 7(a) (defining pleadings). The Federal Rules also provide: “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Furthermore, a court need not have a motion before it to apply the sanction under Fed.R.Civ.P. 37(c)(1). Fed.R.Civ.P. 37 advisory committee's note to subdivision (c) 1993 amendment (“The revision provides a self-executing sanction for failure to make a disclosure required by Rule 26(a), without need for a motion . . . .”); see Carrisbrook Asset Holding Tr. v. SFR Invs. Pool 1, LLC, 3:17-cv-00370-MMD-WGC, 2019 WL 2393614, at * 2 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.