1

This moots the defendant’s argument that the sanctions cannot be sustained under

28 U.S.C. § 1927 or the court’s inherent authority. (Doc. 66 at 6-8).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REGINA WHITE, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0286-WS-N

 )

THYSSENKRUPP STEEL USA, LLC, )

 )

Defendant. )

ORDER

The Magistrate Judge entered an order granting the plaintiff’s second motion for

sanctions. (Doc. 60 at 4-9). The defendant appeals that order. (Doc. 66). The order was

based on the defendant’s failure to provide certain relevant, requested documents in a

timely manner, requiring a reconvening of certain depositions. The order directed the

defendant to pay half the costs of the reconvened depositions. The order also directed the

defendant and its counsel to pay the plaintiff’s costs and attorney’s fees incurred in

connection with the second motion for sanctions. (Id. at 8-9). These sanctions were

imposed pursuant to Rule 37. (Id. at 9).1

 

A Magistrate Judge’s ruling on a non-dispositive matter must be affirmed unless

“it has been shown that the magistrate judge’s order is clearly erroneous or contrary to

law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a); Local Rule 72.3(e). “The

‘clearly erroneous or contrary to law’ standard of review is extremely deferential. ... 

Relief is appropriate under the ‘clearly erroneous’ prong of the test only if the district

court finds that the Magistrate Judge abused [her] discretion or, if after reviewing the

record as a whole, the Court is left with a definite and firm conviction that a mistake has

been made. ... With respect to the ‘contrary to law’ variant of the test, an order is

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contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of

procedure.” Pigott v. Sanibel Development, LLC, 2008 WL 2937804 at *5 (S.D. Ala.

2008) (citations and internal quotes omitted). 

While the Court “must consider timely objections,” an appellant “may not assign

as error a defect in the order not timely objected to.” Fed. R. Civ. P. 72(a). The Court’s

review is thus limited to the challenges articulated by the defendant in its appeal. The

defendant identifies the following defects in the Magistrate Judge’s order: (1) it is too

opaque for review; (2) sanctions are not warranted because the defendant turned over the

documents shortly after defense counsel realized they had not been provided; (3)

sanctions are not permissible because the plaintiff did not certify that she had conferred in

good faith prior to bringing the motion; and (4) sanctions are inappropriate because the

plaintiff was not prejudiced by the tardy discovery and was affirmatively benefited by it. 

The Court considers these objections in turn.

A. Statement of Reasons. 

“[I]n cases involving the sanction power of Rule 37, the district court must clearly

state its reasons so that meaningful review may be had on appeal.” Mutual Service

Insurance Co. v. Frit Industries, Inc., 358 F.3d 312, 326 (11th Cir. 2004) (internal quotes

omitted). The defendant relies on Frit Industries, (Doc. 66 at 8-9), but there the trial

court ruled “without discussion, by quoting the language of Rule 37(c)(2).” Id. Here, the

Magistrate Judge provided over three pages of reasoning for her decision, and the

defendant identifies no aspect of the order that is insufficiently developed to allow for

review.

B. Production of the Documents. 

The defendant argues it should not be sanctioned because it acted promptly to

produce the documents after realizing they had not been provided. (Doc. 66 at 10). The

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defendant does not explain the significance of this fact. While its alacrity in correcting its

omission once it was noticed by counsel may be commendable, it does not eliminate the

harm to the plaintiff caused by not having the documents when she needed them — at the

depositions of the defendant’s employees. 

Under Rule 37(d), on which the Magistrate Judge relied, she was directed to

require the defendant “to pay the reasonable expenses, including attorney’s fees, caused

by the failure” to produce documents as requested, unless the failure to produce was

substantially justified or other circumstances made such an award unjust. The

defendant’s argument could be relevant only if it were addressed to one of these

exceptions to the presumption favoring an award to the plaintiff, yet the defendant

invokes neither.

Even had the defendant articulated a legal argument, it would fail. Eventual

production of requested documents cannot establish that the initial non-production was

substantially justified. Nor could eventual production render an award unjust, since the

increased expense to the plaintiff exists, due to the defendant’s fault, regardless of how

swiftly the defendant acted after realizing its error. 

C. Certification.

The defendant argues that the plaintiff failed to include in her motion a

certification that she had conferred in good faith in an effort to resolve without judicial

intervention the dispute over payment for the reconvened depositions, as contemplated by 

Rules 37(a)(1) and 37(d)(1)(B). The defendant argues further that such failure is fatal to

the plaintiff’s motion for sanctions. (Doc. 66 at 10-14). 

The trouble is that the defendant did not raise this argument in its brief before the

Magistrate Judge. (Doc. 51). “In reviewing a magistrate judge’s nondispositive ruling,

this Court does not consider matters not placed before that judge.” Pigott, 2008 WL

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2

Accord Jesselson v. Outlet Associates Limited Partnership, 784 F. Supp. 1223,

1228 (E.D. Va. 1991) (“Review of a Magistrate’s ruling before the District Court does not

permit consideration of issues not raised before the Magistrate.”); Whittum v. Saginaw

County, 2005 WL 3271810 at *4 (E.D. Mich. 2005); Lithuanian Commerce Corp. v. Sara

Lee Hosiery, 177 F.R.D. 205, 211-12 (D.N.J. 1997); Mitchell v. Consolidated

Freightways Corp., 747 F. Supp. 1446, 1447 (M.D. Fla. 1990); see also First Savings

Bank v. U.S. Bancorp., 184 F.R.D. 363, 366 (D. Kan. 1998) (trial court may not receive

additional evidence on review of nondispositive rulings).

3

Although Williams was decided in the context of a report and recommendation, its

reasoning applies equally here. The Williams Court noted the negation of the efficiencies

of referrals, and the possibility of gamesmanship, that would occur could litigants foist on

district courts arguments and evidence they neglected to present to the magistrate judge. 

Id. at 1291-92. An adequate explanation for the failure might persuade the Court to

consider a tardy argument despite these concerns, but the defendant offers none.

4

It is theoretically possible the defendant presented a certification argument to the

Magistrate Judge at the hearing she held on the motion for sanctions. It was incumbent

upon the defendant to assert and then demonstrate that it did so, and in the absence of

such assertion and demonstration the Court will not speculate in the defendant’s favor.

-4-

2937804 at *5 n.9 (internal quotes omitted);2 see also Williams v. McNeil, 557 F.3d 1287,

1292 (11th Cir. 2009) (“[A] district judge has discretion to decline to consider a party’s

argument when that argument was not first presented to the magistrate judge.”).3

 Because

the defendant did not argue to the Magistrate Judge that the motion for sanctions was

defective because the plaintiff did not provide a certification, the Court declines to

entertain the argument on appeal from her ruling.4

 

D. Prejudice.

The defendant argues the plaintiff was not prejudiced by reconvening the

depositions because, had she had the missing documents at the initial depositions, she

would have spent the same time then as she spent on the reconvened depositions. (Doc.

66 at 14-15). The defendant made the same argument to the Magistrate Judge, (Doc. 51

at 21-22), the Magistrate Judge rejected it, (Doc. 66 at 7), and the defendant has done

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nothing to show that her finding based on that argument is clearly erroneous or contrary

to law.

Instead, the defendant attempts to pad its argument with material it did not present

to the Magistrate Judge. Thus, it claims the plaintiff was benefited by the reconvened

depositions, both because it provided a vehicle for new subpoenas duces tecum that

sought and obtained documents the plaintiff had not previously requested, and because

the plaintiff used the reconvened the depositions to re-plow ground she had covered in the

initial depositions. (Doc. 66 at 15-19). Even if the defendant could not have made these

points in its brief in opposition (which was filed before the reconvened depositions

occurred), it could have done so before the Magistrate Judge entered her ruling a full

month after the reconvened depositions occurred. As with the defendant’s belated

certification argument, the Court will not consider an argument the defendant could have,

but did not, present to the Magistrate Judge. 

CONCLUSION

For the reasons set forth above, the Magistrate Judge’s order awarding fees and

expenses is affirmed.

DONE and ORDERED this 20th day of May, 2010.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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