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Seidman v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

November 3, 2016



          William J. Martínez United States District Judge.

         This case arises out of an accident on August 7, 2012 in which Lawrence Seidman (“Plaintiff”) was hit by an oncoming vehicle while riding his bicycle. (ECF No. 3 at 2.) At the time of the accident, Plaintiff was insured by American Family Mutual Insurance Company (“Defendant”). (Id.) Plaintiff alleges, among other things, bad faith and breach of insurance contract related to Defendant's handling of Plaintiff's underinsured motorist claim. (Id. at 3.)

         The Final Pretrial Conference was held on February 4, 2016, and the Final Pretrial Order was entered. (ECF No. 67.) On February 19, 2016, Plaintiff filed a Motion to Amend the Final Pretrial Order (“Motion to Amend”). (ECF No. 73.) On February 29, 2016, Defendant filed a Motion to Strike Plaintiff's 22nd, 23rd, 24th, 25th, 26th, 27th and 28th Supplemental Disclosurees [sic] and Related Portion of Plaintiff's Motion to Amend the Final Pretrial Order and to Preclude New Witnesses and Exhibits (“Motion to Strike”). (ECF No. 77.) The Court referred both motions to United States Magistrate Judge Kathleen M. Tafoya pursuant to Federal Rule of Civil Procedure 72(a). (ECF Nos. 74, 78.)

         On May 26, 2016, the Magistrate Judge addressed both motions in a single order (“Order”). (ECF No. 92.) The Order awarded attorneys' fees to Defendant in a to-be-determined amount. (Id. at 16.) On June 15, 2016, Defendant filed a Motion for Costs and Attorneys' Fees pursuant to the Order requesting the stipulated amount of $5, 000. (ECF No. 96.) This motion was also referred to the Magistrate Judge who issued an order on September 26, 2016, awarding $5, 000 in costs and attorneys' fees to the Defendant (“Order on Costs”). (ECF Nos. 103, 104.)

         Before the Court are the following: (1) Plaintiff's Objection/Appeal of Magistrate Judge's Order on Motion to Amend, Order on Motion to Strike (“Objection to Order”) (ECF No. 94); and (2) Plaintiff's Objection/Appeal of Magistrate Judge's Order on Motion for Costs (“Objection to Costs”). (ECF No. 105.) For the reasons set forth below, both of Plaintiff's Objections are overruled.


         “Discovery is a nondispositive matter . . . .” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). When reviewing an objection to a magistrate judge's non-dispositive ruling, the Court must adopt the ruling unless it finds that the ruling is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson, 105 F.3d at 566; Ariza v. U.S. West Commc'ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). The clearly erroneous standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). The “contrary to law” standard permits “plenary review as to matters of law, ” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr. 2015 update), but the Court will set aside a Magistrate Judge's order only if it applied the wrong legal standard or applied the appropriate legal standard incorrectly, see Wyoming v. U.S. Dep't of Agric., 239 F.Supp.2d 1219, 1236 (D. Wyo. 2002). In short, “[b]ecause a magistrate judge is afforded broad discretion in the resolution of non-dispositive discovery disputes, the court will overrule the magistrate judge's determination only if his discretion is abused.” Ariza, 167 F.R.D. at 133.

         II. ANALYSIS

         A. Plaintiff's Objection to Order on Motion to Amend/Order on Motion to Strike

         Plaintiff's Motion to Amend proposed an amended Final Pretrial Order that included the following additional material: (1) medical animations, illustrations and drawings, and an accident reconstruction video animation; (2) American Family corporate documents; (3) medical records which pre-date and post-date the discovery cut-off date; and (4) re-categorization of a previously listed medical witness. (ECF No. 73.) The Magistrate Judge allowed the Final Pretrial Order to be amended to include Plaintiff's medical records and American Family corporate documents as potential exhibits, but ordered the animation disclosures stricken. (ECF No. 92 at 11, 17.)[1]

         1. Medical Animations and Accident Reconstruction Video Animation

         Rule 26 allows parties to supplement prior disclosures, in a timely manner, if the prior response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the course of discovery. Fed.R.Civ.P. 26(e)(1)(A). In addition to finding the disclosures untimely, the Magistrate Judge found that the animations did not concern new or corrective information. (ECF No. 92 at 8.) Plaintiff objects to the Order arguing that the animation exhibits were not available to Plaintiff prior to February 19, 2016. (ECF No. 94 at 5-6.) Whether true or not, this Court would still find no abuse of discretion in the Magistrate Judge's conclusion that the disclosures do not serve the purpose of Rule 26 because the exhibits do not seek to correct or complete prior discovery. Therefore, this portion of Plaintiff's Objection to Order is overruled.

         2. American Family Corporate Documents

         The Magistrate Judge found that the American Family corporate documents-documents Plaintiff discovered though his own efforts-were untimely and in considering whether this Rule 26(e) violation is justified or harmless, the Magistrate Judge applied the factors established by the Tenth Circuit in Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999), noting that she found it “difficult to ascertain how the Defendant can actually be prejudiced by inclusion of documents belonging to it, that it knew and acknowledged were relevant, and that have been produced in several other cases in Colorado and around the nation.” (ECF No. 92 at 13.) Defendant did not file an objection to this ruling pursuant to Rule 72(a), but instead Defendant reiterates in its response to Plaintiff's Objection that the Court should strike the supplemental disclosures because they were untimely. (ECF No. 98 at 6.) Whether or not Plaintiff's disclosures were untimely, this objection is procedurally improper (given that it is ...

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