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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

Plaintiff, )

 )

v. ) CIVIL ACTION NO. 12-00498-KD-C

 ) 

HAMILTON SMITH, )

Defendant. )

ORDER APPOINTING RULE 53 CONSULTANT

This matter is before the Court on Plaintiff’s unopposed Notice of Suggested Candidate 

for Appointment as the Court’s consultant identifying Gena Todia (Doc. 148), and Plaintiff’s 

Supplemental Notice (Doc. 151).

Pursuant to Federal Rule of Civil Procedure Rule 53(a)(1)(C), this Court may appoint a 

consultant to address post-trial matters that “cannot be effectively...addressed by an available 

district judge.” In this case, the implementation of, and monitoring compliance with, the 

restoration plan (Doc. 145-1) issued in this case cannot be effectively monitored by the 

undersigned due to the expertise needed. 

Having determined that the appointment of a Rule 53 consultant is proper and that it is 

fair and reasonable that Defendant Hamilton Smith pay for the expenses of a consultant under 

Rule 53(a)(3), the Court requested suggestions of candidates by the parties. The parties jointly

request that Gena Todia, President of Wetland Resources Environmental Consulting, Fairhope, 

Alabama, be appointed as Consultant.

Upon consideration – and after having given notice to the parties that this Court would 

appoint a Consultant, having received the suggestion from the parties to appoint Gene Todia as 

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Consultant, and having received Todia’s disqualification Declaration swearing there is no ground 

for disqualification under 28 U.S.C. § 4551 -- it is hereby ORDERED that Plaintiff’s unopposed

request is GRANTED and Gene Todia is APPOINTED as the Rule 53 Consultant.

Accordingly, the Court hereby APPOINTS Gene Todia to serve as Consultant in this 

case to ensure the timely and effective implementation of, and monitoring of Defendant 

Hamilton Smith’s compliance with, the restoration plan set forth at Doc. 145-1 as follows:2

1. The Consultant is DIRECTED to proceed with all reasonable diligence in 

performing her duties, as set forth in the restoration plan issued in this case (Doc. 145-1),

and herein. Fed. R. Civ. P. 53(b)(2).

2. Consultant’s Duties.

3 Fed. R. Civ. P. 53(b)(2)(A). 

-The Consultant’s duties include monitoring Defendant Hamilton Smith’s

compliance with the temporary restorative injunction -- and the implementation of same 

in a timeframe that corresponds with that provided in Doc. 145-1. 

-The Consultant shall monitor and report upon Defendant Hamilton Smith’s 

implementation and compliance with Doc. 145-1, submit status reports, and make

recommendations to the Court and the parties on remedial action, if needed. 

-The Consultant shall file periodic reports with the Court notifying same of the 

status of Defendant Hamilton Smith’s compliance with the temporary restorative 

injunction, as instructed.

3. Consultant’s Communications with the Parties and the Court. Fed. R. Civ. P. 

53(b)(2)(B).4 The Consultant may communicate ex parte with the Court or a party to 

explain any findings made in the monitoring report.

 1 Todia has submitted the requisite statement with regard to any potential grounds for disqualification in 

this case, affirming that there are no grounds for disqualification under 28 U.S.C. § 455 and that no conflicts of 

interest exist. Fed.R.Civ.P. Rule 53(a)(2) and 53(b)(3). (Doc. 151-1 at 1 (Decltn. Todia)).

2 Rule 53(b)(2) requires an order of appointment to include certain contents. The following discussion 

sets forth the matters required.

3 Rule 53(a)(1)(A) states that the Court may appoint a master to “perform duties consented to by the 

parties.”

4 Rule 53(b)(2)(B) directs the Court to set forth “the circumstances, if any, in which the master may 

communicate ex parte with the court or a party.”

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4. Consultant’s Record. Fed. R. Civ. P. 53(b)(2)(C).5 The nature of the materials

to be preserved and filed as the record of the consultant’s activities is defined as follows: 

-The Consultant must file an annual monitoring report.

-The Consultant shall maintain normal billing records of the time spent on this 

matter with reasonably detailed descriptions of her activities and matters upon which she 

has worked.

-If the Court asks the Consultant to submit a formal status report or 

recommendation regarding any matter, the Consultant shall submit such status report or 

recommendation in writing, for electronic filing on the case docket.

-The Court may later amend the requirements for the Consultant’s record if the

role of the Consultant changes, or if the Court finds such necessary.

5. Consultant’s Authority

-While a consultant has been appointed, this Court retains full authority in this 

case to hold all proceedings and make all final decisions as to whether the Court’s Order 

has been implemented. 

-Specifically, the Consultant shall not have the authority to conduct any formal 

proceedings or evidentiary hearings or issue any sanction. However, the Consultant 

shall have the authority to initiate contact and communicate with the parties and their 

counsel, as the need arises, to permit the full and efficient performance of her duties 

and/or for the purposes of the efficient monitoring of compliance with the temporary 

restorative injunction. 

6. Review of the Consultant’s Reports and/or Recommendations6 Fed. R. Civ. 

P. 53(b)(2)(D). The Consultant shall perform her duties during the time limits set forth 

in the temporary restorative injunction at Doc. 145-1. 

-The Consultant shall not issue orders in this case. 

-Any findings of the Consultant shall be filed with the Court in the form of 

periodic written Status Reports or a Recommendations (as needed and as directed, given 

the circumstance) regarding Defendant Hamilton Smith’s compliance with the restoration 

plan and in so doing, shall also file supporting documentation as specified under same or 

as requested by this Court. Fed. R. Civ. P. 53(d). The Consultant may only issue such 

status reports or recommendations for the undersigned’s review and approval. All such 

submissions shall be in writing and shall be made of record.

-The Consultant shall file Status Reports and/or Recommendations every 90 days

starting from the date of this Order, unless the Court orders otherwise. 

-The Consultant shall reduce any report or recommendation to writing and file it 

electronically on the case docket via Electronic Case Filing (“ECF”).

 5 Rule 53(b)(2)(c) states that the Court must define “the nature of the materials to be preserved and filed as 

a record of the master's activities.”

6 Rule 53(b)(2)(D) directs the Court to state “the time limits, method of filing the record, other procedures, 

and standards for reviewing the master's orders, findings, and recommendations.” 

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7. Consultant’s Compensation.

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 Fed. R. Civ. P. 53(b)(2)(E), 53(g)(1)-(3). The 

basis, terms, and procedure for fixing the consultant’s compensation, which this Court 

finds reasonable at the rate of $125/hour for an estimated 48 hours (or $6,000) of work 

in this case, has been agreed upon among the parties and the consultant.8

-The Consultant shall make all reasonable efforts to stay within the estimated 

$6,000 budget. However, if needed, the Court may set a new basis and terms after 

giving notice and an opportunity to be heard. Fed. R. Civ. P. 53(g)(1). 

As stated supra, the Consultant’s Compensation shall be paid by Defendant 

Hamilton Smith. Fed. R. Civ. P. 53(g)(2). 

The Consultant shall file, every 120 days, an Itemized Statement regarding the 

services rendered and billed (showing all fees and expenses incurred) which the Court 

will inspect carefully for regularity and reasonableness. If the Court determines the 

Itemized Statement is regular and reasonable, the Court will sign the corresponding 

Summary Statement and transmit it to Defendant Hamilton Smith. Defendant Hamilton 

Smith shall then remit to the Consultant payment of any Court-approved amount, within 

30 calendar days of Court approval.

8. Amendments. Fed. R. Civ. P. 53(b)(4). This Order may be amended by the 

undersigned at any time after notice to the parties and an opportunity to be heard.

9. Other Matters. The Consultant shall have the full cooperation of the parties and 

their counsel for the purposes of the Consultant’s efficient monitoring of compliance with 

the temporary restorative injunction. The parties will make readily available to the 

Consultant any and all facilities, files, documents, etc., which are necessary to fulfill the 

Consultant’s functions and duties under this Order and Doc. 145-1.

DONE and ORDERED this the 5th day of September 2014.

/s/Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

 

7 Rule 53(b)(2)(E) states that the Court must set forth “the basis, terms, and procedure for fixing the 

master's compensation;” see also Rule 53(g) (addressing compensation).

8 At present, Todia does not know the exact amount of time necessary to serve as consultant, but estimates 

that the appointment will require 48 hours of her time at the rate of $125/hour, totaling $6,000. (Doc. 151-1 at 1-2 

(Decltn. Todia)).

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