United States District Court, M.D. Tennessee, Nashville Division
THE DIAMOND CONSORTIUM, INC. D/B/A THE DIAMOND DOCTOR, ET AL. Plaintiffs/Counter-Defendants,
MARK HAMMERVOLD, ET AL. Defendants/Counter-Plaintiffs BOAZ RAMON, Deponent.
A. TRAUGER UNITED STATES DISTRICT JUDGE.
before the court is an Objection (Docket No. 38) seeking
review of the magistrate judge's Report and
Recommendation issued on April 8, 2019 (Docket No. 37), filed
by third parties Boaz Ramon and Afsoon Hagh. The plaintiffs,
The Diamond Consortium, Inc. d/b/a The Diamond Doctor
(“The Diamond Doctor”) and David Blank, have
filed a Response in opposition. (Docket No. 40.) For the
reasons discussed herein, Ramon and Hagh's Objection will
be sustained in part.
matter arises from a lawsuit filed by the plaintiffs in the
United States District Court for the Eastern District of
Texas. (Docket No. 2-1.) The lawsuit asserts claims against a
host of defendants-Brian Manookian; Cummings Manookian, PLC;
Mark Hammervold, and; Hammervold, PLC-related to the
purported extortion of The Diamond Doctor's jewelry
business. (See id.) In the course of litigating the
Texas case, the plaintiffs issued a subpoena to depose, and
direct document production from, third party Boaz Ramon.
(Docket No. 1-1.) Ramon is a Nashville resident who owns and
operates a jewelry retailer headquartered in Nashville.
(Docket No. 1 at 2.) The subpoena called for Ramon to appear
for a deposition in Nashville on December 17, 2018. (Docket
No. 1-1 at 1.)
response, Ramon filed a Motion to Quash in this court on
December 11, 2018. (Docket No. 1.) Hagh was Ramon's
attorney on the motion, which served as the first notice to
the plaintiffs' counsel that Hagh was representing Ramon.
Ramon argued in the motion that the December 17 deposition
date presented an undue burden because it coincided with the
peak holiday sales season at Ramon's jewelry stores.
(Id. at 2-3.) On December 14, 2018, the court
referred the matter to the magistrate judge. (Docket No. 3.)
Ramon did not appear for his deposition on December 17 or
produce the requested documents by that date. (Docket No.
10-4 at 4.) The magistrate judge held a telephonic conference
the day after Ramon's failure to appear, during which he
directed counsel to meet and attempt to resolve their issues.
Counsel were unable to do so. On December 28, 2018, the
magistrate judge denied Ramon's Motion to Quash.
(Docket No. 8.) The magistrate judge ordered Ramon to appear
for deposition between January 9, 2019 and January 23, 2019,
and to produce all requested documents by January 7, 2019.
(Id. at 3.) The magistrate judge specified that, if
the parties were unable to agree upon a date within that
window, Ramon should appear on January 23, 2019 at 9:00 a.m.,
at a location designated by the plaintiffs' counsel.
(Id.) Ramon's attorney, Hagh, emailed counsel
for the plaintiffs, and the parties agreed that Ramon would
be deposed on January 23, 2019 at 9:30 a.m., at a location
provided by Hagh. (Docket No. 29-1 at 5-7.)
January 10, 2019, the plaintiffs filed a Motion for Award of
Fees and Costs. (Docket No. 9.) The plaintiffs sought $2,
970.00 in attorney's fees and $958.84 in costs for
Ramon's failure to appear at the December 17 deposition.
(Id.) On January 18, 2019, the Friday before the
federal three-day Martin Luther King Jr. holiday, Mark
Hammervold and Hammervold, PLC (the “Hammervold
Defendants”) filed a Motion for Protective Order to
prevent the plaintiffs from deposing Ramon on January 23.
(Docket No. 11.) They argued that the scheduled deposition
was after the discovery deadline in the underlying Texas case
and that the Hammervold Defendants' counsel had personal
obligations that prevented him from participating in
Nashville on January 23. (Docket No. 11.) On January 22,
2019, the court referred all pending and future motions in
the case to the magistrate judge. (Docket No. 13.) That same
day, counsel for the plaintiffs traveled from Dallas, Texas
to Nashville, in order to depose Ramon the following day.
and Hagh did not appear for the January 23 deposition.
(Docket No. 29-3 at 2.) Instead, that day, Ramon filed a
Response in opposition to the requested fees and costs
stemming from Ramon and Hagh missing the first deposition.
(Docket No. 12.) Ramon contended that, because counsel for
the Hammervold Defendants indicated that he, too, was
unavailable on the scheduled date of the first deposition
(December 17), Hagh “had no reason to believe the
Plaintiffs, in good faith, would proceed with the
deposition.” (Id. at 1.) Ramon further argued
that Hagh's unresponsiveness to inquiries about the
scheduled deposition was the result of her recent maternity
leave. (Id. at 2.) Also on January 23, 2019, Hagh
filed a Notice of Withdrawal stating only that, “for
good cause, she is no longer counsel of record” for
Ramon. (Docket No. 14 at 1.) Hagh notified the plaintiffs of
her intention to withdraw approximately an hour and a half
before Ramon's scheduled deposition. (Docket No. 29 at
2.) This notification came after multiple earlier emails
between Hagh and the plaintiffs' counsel, confirming the
date, time, and location of the scheduled deposition. (Docket
Nos. 29-1, 29-2.) Hagh made no effort to withdraw as
Ramon's counsel prior to January 23, 2019.
January 25, 2019, the plaintiffs filed a Motion for Order to
Show Cause, asking the court to direct Ramon and Hagh to
appear and show cause why they should not be held in contempt
for failing to comply with the magistrate judge's
December 28 order. (Docket No. 16.) On February 7, 2019, Hagh
filed a Motion to Withdraw (Docket No. 19) and a separate
Motion for Extension of Time to Respond (Docket No. 21).
Hagh's basis for withdrawal was an allegedly
irreconcilable conflict in representing Ramon because of
purported connections between lawyers in her law firm and the
underlying litigation. (Docket Nos. 19 and 19-1.) The
plaintiffs contested Hagh's request (Docket No. 30) and,
on February 21, 2019, filed a Second Motion for Attorney Fees
and Costs, seeking attorney's fees of $5, 265.00 and
costs of $2, 531.92 for the failure of Ramon and his counsel
to appear for Ramon's second scheduled deposition.
(Docket No. 28.) No. response to the plaintiffs' second
motion for costs and fees was filed.
March 1, 2019, the Hammervold Defendants filed a Notice,
stating that the plaintiffs had voluntarily dismissed the
underlying Texas case (Docket No. 33), along with an order
granting the “Unopposed Motion for Voluntary Dismissal
without Prejudice” entered by the Eastern District of
Texas (Docket No. 33-1.) The order of dismissal states that
“[a]ll relief not previously granted is hereby
denied.” (Id.) On March 8, 2019, the
magistrate judge issued her Report and Recommendation. The
Report and Recommendation sets forth the magistrate
judge's conclusion that, while the dismissal of the
underlying Texas case resolved some of the motions pending
between the parties in this case, the motions for
attorney's fees and other sanctions are collateral issues
that remain appropriate for disposition in this court.
(Docket No. 37 at 2.) The magistrate judge recommends that
the plaintiffs' two motions for fees and costs be
granted,  that the Hammervold Defendants' motion
for a protective order be denied as moot, that the
plaintiffs' motion for a show cause order be denied, that
Hagh's motion to withdraw be granted, and that
Ramon's motion for an extension of time be denied as
moot. (Id. at 11.) On April 19, 2019, Ramon and Hagh
filed their Objection. They seek review of the recommendation
that the plaintiffs' two motions for costs and fees be
standard of review applicable to a party's objections to
a magistrate judge's ruling depends upon whether the
objections pertain to a dispositive or non-dispositive
matter. If the issue is dispositive, any party may, within
fourteen days after being served with a magistrate
judge's recommended disposition, “serve and file
specific written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2). The district
court must review de novo any portion of the report
and recommendation to which objections are
“properly” lodged. Fed.R.Civ.P. 72(b) (3); 28
U.S.C. § 636(b)(1)(B) & (C). An objection is
“properly” made if it is sufficiently specific to
“enable[ ] the district judge to focus attention on
those issues-factual and legal-that are at the heart of the
parties' dispute.” Thomas v. Arn, 474 U.S.
140, 147 (1985). “The filing of vague, general, or
conclusory objections does not meet the requirement of
specific objections and is tantamount to a complete failure
to object.” Holloway v. Palmer, No. 16-2450,
2017 WL 4844457, at *2 (6th Cir. Apr. 5, 2017); see also
Special Learning, Inc. v. Step by Step Acad., Inc., 751
Fed.Appx. 816, 819 (6th Cir. 2018). In conducting its review,
the district court “may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
may also file objections to a magistrate judge's
nondispositive order within fourteen days of being served
with such order, but this court's review of a magistrate
judge's resolution of a non-dispositive pretrial matter
is limited to determining whether the order is “clearly
erroneous” or “contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a). “Thus, §
636(b) creates two different standards of review for district
courts when a magistrate court's finding is challenged in
district court. A district court shall apply a ‘clearly
erroneous or contrary to law' standard of review for the
‘nondispositive' preliminary measures of §
636(b)(1)(A). Conversely, ‘dispositive motions' . .
. are governed by the de novo standard.” United
States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001)
(quoting United States v. Raddatz, 447 U.S. 667,
673- 74 (1980)). Under the “clearly erroneous or
contrary to law” standard, the court is not empowered
to reverse the magistrate judge's finding simply because
the court would have decided the issue differently.
noted above, Ramon and Hagh style their motion as one for
review of a nondispostive order, which would limit the
court's review to the “clearly erroneous or
contrary to law” standard. However, under Federal Rule
of Civil Procedure 54(d)(2)(D), “the court may . . .
refer a motion for attorney's fees to a magistrate judge
under Rule 72(b) as if it were a dispositive pretrial
matter.” Fed. R. Civ. Pro. 54; see Toliver v. JBS
Plainwell, Inc., No. 1:11-CV-302, 2016 WL 165031, at *4
(W.D. Mich. Jan. 14, 2016) (“While a motion for
attorney fees is, by its ordinary meaning,
‘nondispositive,' the governing statute directs
courts to treat the referral of such motions as it would
“dispositive pretrial matters.”). Because such
motions are “dispositive of a claim, ” Massey
v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993),
the magistrate judge correctly addressed the motions by
issuing a Report and Recommendation, which is subject to
“de novo review by the district court.”
Id. The court will thus review de novo the
portions of the Report and Recommendation to which Ramon and
Hagh have raised objections.
and Hagh object on three grounds to the magistrate
judge's recommendation that the plaintiffs' motions
for fees and costs both be granted. First, Ramon and Hagh
argue that the dismissal of the underlying Texas case mooted
and adjudicated both of the plaintiffs' motions. Second,
they argue that, even if the motions remain viable following
dismissal of the Texas case, an award of ...