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Rogler v. Fotos

United States District Court, D. Maryland, Northern Division

February 25, 2015

EDAR Y. ROGLER, Plaintiff,
ALEXANDRA M. FOTOS, et al., Defendants.


WILLIAM D. QUARLES, Jr., District Judge.

On January 27, 2014, Edar Y. Rogler sued Alexandra M. Fotos[1] and Neill Harpe, alleging tort and contract theories of liability. ECF No. 1.[2] On March 25, 2014, Rogler "received actual service of the Defendants' Answer." ECF No. 7 ¶ 4; see also ECF No. 7-1 at 1.[3] On May 9, 2014, Rogler moved to strike the Defendants' Answer. ECF No. 12.[4] Pending are Rogler's objections to Magistrate Judge Stephanie A. Gallagher's Report and Recommendation ("R&R") denying Rogler's motion. ECF Nos. 94, 107.[5] For the following reasons, the Court will adopt Judge Gallagher's R&R.[6]

Under the Magistrate Judges Act, 28 U.S.C. § 636, a district judge may designate a magistrate judge to conduct hearings (if necessary) and report proposed findings of fact and recommendations for action on a dispositive motion. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); see also Local Rule 301.5(b) (D. Md. 2014).[7]

A party aggrieved by a magistrate judge's R&R about a dispositive motion must file "specific written objections to the proposed findings and recommendations" within 14 days. Fed.R.Civ.P. 72(b)(2). The reviewing judge "shall make a de novo determination of those portions of the [magistrate judge's] report... to which objection is made." 28 U.S.C. § 636(b)(1)(C). The judge "may accept, reject, or modify, in whole or in part, the findings or recommendations, " and "may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

On December 9, 2014, Judge Gallagher recommended that the Court deny as moot Rogler's motion to strike the Defendants' Answer, because Rogler had confirmed receipt of the Answer, and "deadlines for filing motions in response to the Answer would begin running anew from December 9, 2014." ECF No. 74 at 1-2. Thus, Judge Gallagher reasoned that any prejudice Rogler "may have suffered as a result of the allegedly improper service has been eliminated." Id. at 2. Rogler objects to the R&R on various grounds; each will be discussed.

First, Rogler objects that the Defendants "failed to properly serve" their Answer in violation of Federal Rules of Civil Procedure 5 and 8, "thereby... gain[ing] an unconstitutional advantage in the instant litigation that has not been resolved." ECF No. 107 ¶ 1. "Pursuant to Rule 12(f) the [A]nswer is insufficient as matter of law and should be stricken." Id. [8]

Rule 5(b) requires pleadings filed after the complaint to be served, inter alia, by "mailing it to the person's last known address - in which event service is complete upon mailing." Fed.R.Civ.P. 5(b)(2)(B)(c). Here, in addition to sending the Answer via email, the Defendants mailed it to the address listed on the complaint. ECF No. 8 ¶ 1. Rule 8 governs "general rules of pleading." Fed.R.Civ.P. 8. Rogler has not directed the Court to a Rule 8 violation. Rule 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Rogler has not identified an insufficient defense, or redundant, immaterial, impertinent, or scandalous matter, but moved to strike the Answer because "Defendants... certif[ied] that they had served [Rogler] electronically, " in violation of Federal and Local Rules. ECF No. 12 ¶ 1. This objection lacks merit.

Second, Rogler objects that Judge Gallagher "did not reset the clock" because she "invited the Defendants to file discovery motions on... issues that arose" before December 9, 2014, and on Rogler's responses filed before December 9, 2014. ECF No. 107 ¶ 2.[9] Relatedly, Rogler objects that Judge Gallagher's "discovery orders do not resolve all of the prejudice to [Rogler], " and afford unspecified constitutional advantage to the Defendants. Id. ¶ 5.

By way of support, Rogler points to the Defendants' December 15, 2014 motions for appropriate relief (1) as to documents produced by Rogler's medical provider pursuant to subpoena, which Defendants had received but not reviewed while the case was stayed; and (2) as to the inspection of documents referenced in Rogler's response to the Defendants' request for the production of documents, ECF Nos. 76, 77, that Judge Gallagher confirmed would need to be filed before discovery proceeded, ECF No. 83 at 28:18-29:9. See ECF No. 107 ¶ 5.

Rogler apparently contends that those motions were impermissibly filed because discovery was supposed to restart on December 9, 2014, and she was to have 30 days to respond to previously-served discovery requests. ECF No. 107 ¶ 5. Rogler contends that the documents referenced in the Defendants' motions should be returned. Id. ¶ 7. Returning, and re-subpoenaing the documents, would be, at the very least, inefficient. Moreover, Judge Gallagher stated that she would not rule on the Defendants' discovery motions until Rogler had an opportunity to respond. ECF No. 83 at 29: 4-8.[10] Thus, the Court is unable to discern any unconstitutional advantage afforded to the Defendants by the filing of these motions after the discovery clock began anew, and this objection lacks merit.

Third, Rogler objects that Judge Gallagher did not hold an evidentiary hearing before finding that Rogler would not be prejudiced by the denial of her motion as moot, and that such finding was "arbitrary and capricious." ECF No. 107 ¶ 3. However, Judge Gallagher based her finding on Rogler's on-the-record confirmation that she had received the Answer and discovery requests. ECF No. 83 at 9:22-23; 27:5-10.[11] Judge Gallagher restarted the discovery clock, to permit "full time for discovery, full time for the status report, and for dispositive motions." Id. at 10:16-19. Judge Gallagher properly exercised her discretion in declining to hold an evidentiary hearing before issuing her R&R. See Local Rule 105.6 ("Unless otherwise ordered by the Court, ... all motions shall be decided on the memoranda without a hearing.").

Fourth, Rogler objects that setting a date for Rogler's deposition during the December 9, 2014 scheduling conference amounted to "re-visiting the past without any meet and confer required by [Federal Rule of Civil Procedure] 26(f), " or the filing of a discovery motion, and, thus, that Rogler "had no reasonable notice and no reasonable opportunity to be heard." ECF No. 107 ¶ 4.[12] Relatedly, Rogler objects that the Defendants had discovery beginning April 9, 2014, and gained an unconstitutional advantage by attempting to have a "meet and confer" under Rule 26(f) by sending a letter to Judge Gallagher.[13] ECF No. 107 ¶ 6.

During the December 9, 2014 scheduling conference, Rogler's objections to the deposition schedule were heard and considered by Judge Gallagher. ECF No. 83 at 17:7-19:22. The schedule was reset, thus permitting Rogler time to file any response to the Answer she deemed appropriate. Id. at 28:10-14. Her objections about alleged Rule 26(f) violations appear unrelated to the instant motion to strike the Defendants' Answer, and, thus, lack merit.

Fifth, Rogler objects that she has been forced to "prepare her own discovery, " respond to discovery motions, amend her responses to discovery requests, and prepare motions for reconsideration and objections to the R&R. ECF No. 107 ¶ 8. Notwithstanding the objection to the R&R, which the Court permitted Rogler additional time to submit, ECF No. 95, the Court is unable to discern any basis in this objection for overruling the R&R. Rogler asserted that she "has not been relieved of the prejudice to her caused by [ sic ] Defendants' refusal to comply with the rules." ECF No. 107 ¶ 8. However, as noted, Rogler ...

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