Filed: Oct. 10, 2018
Latest Update: Oct. 10, 2018
Summary: ORDER APPOINTING SPECIAL MASTER JAMES L. ROBART , District Judge . Pursuant to Rule 53 of the Federal Rules of Civil Procedure and the terms of this order, the court appoints Michelle Peterson to serve as Special Master. 1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C) and with no objections from the parties after the court provided notice and an opportunity to be heard (see Dkt. # 135; Dkt. # 136; see generally Dkt.), the court appoints Michelle Peterson as Special Master to a
Summary: ORDER APPOINTING SPECIAL MASTER JAMES L. ROBART , District Judge . Pursuant to Rule 53 of the Federal Rules of Civil Procedure and the terms of this order, the court appoints Michelle Peterson to serve as Special Master. 1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C) and with no objections from the parties after the court provided notice and an opportunity to be heard (see Dkt. # 135; Dkt. # 136; see generally Dkt.), the court appoints Michelle Peterson as Special Master to as..
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ORDER APPOINTING SPECIAL MASTER
JAMES L. ROBART, District Judge.
Pursuant to Rule 53 of the Federal Rules of Civil Procedure and the terms of this order, the court appoints Michelle Peterson to serve as Special Master.
1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C) and with no objections from the parties after the court provided notice and an opportunity to be heard (see Dkt. # 135; Dkt. # 136; see generally Dkt.), the court appoints Michelle Peterson as Special Master to assist with Defendant Eddie Bauer, LLC's ("Eddie Bauer") motion to compel (Dkt. # 137) and other discovery related issues that may arise in this matter.
2. No Grounds for Disqualification. Pursuant to Rules 53(a)(2) and 53(b)(3), the court attaches to this order the Special Master's declaration identifying any relationship to the parties, counsel, action, or court that would require disqualification of a judge under 28 U.S.C. § 455.
3. Fairness Considerations. Pursuant to Rule 53(a)(3), the court considered the fairness of imposing the likely expenses on the parties and concludes that appointing a Special Master will materially advance the litigation in an efficient manner. The court will protect against unreasonable expense and delay through communication with the Special Master and the parties as appropriate.
4. Notice. Pursuant to Rule 53(b)(1), the court provided notice to the parties of its intent to appoint Michelle Peterson as Special Master and provided an opportunity to be heard on the appointment. (See Dkt. # 135.) Plaintiff Veridian Credit Union ("Veridian") agreed to have Michelle Peterson serve as the Special Master. (See Dkt. # 136.) Eddie Bauer did not respond to the court's notice. (See generally Dkt.)
5. Diligence. Pursuant to Rule 53(b)(2), the court directs the Special Master to proceed with all reasonable diligence.
6. Special Master's Duties and Scope of Authority. Pursuant to Rule 53(b)(2)(A), the Special Master shall assist with Eddie Bauer's motion to compel (Dkt. # 137) and other discovery-related issues that may arise in this matter. If a discovery issue arises for which a party or the parties oppose the Special Master's assistance, the party or parties must promptly specify their opposition in a filing on the docket. The Special Master shall have the authority provided in Rule 53(c), except that the Special Master may recommend but not issue sanctions; cf. Federal Rule of Civil Procedure 53(c)(2), and the Special Master may issue reports and recommendations but not orders, cf. Federal Rule of Civil Procedure 53(c)-(d). A court reporter shall record any proceedings before the Special Master.
7. Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master may communicate ex parte with the court without restriction. The Special Master shall not communicate ex parte with any party, except (1) with respect to administrative and procedural matters; (2) to the extent the Special Master determines ex parte communication is necessary to maintain the confidentiality of privileged communications (for example, in conducting in-camera review); and (3) as mutually agreed to by the parties. The Special Master must report any ex parte communication with a party that is undertaken to maintain the confidentiality of privileged communications. When the Special Master communicates ex parte with a party for the other purposes identified in this paragraph, the Special Master may report that communication to the extent and in the manner the Special Master deems appropriate. To the extent and in the manner the Special Master deems appropriate, the Special Master may offer the party to whom the report is supplied an opportunity to respond.
8. Preservation of Materials. Pursuant to Rule 53(b)(2)(C), the Special Master shall maintain orderly files consisting of all documents submitted to her by the parties and of her written reports and recommendations.
9. Review of the Special Master's Reports and Recommendations. Pursuant to Rule 53(b)(2)(D), the court orders the following:
a. Time Limits. Pursuant to Rule 53(f)(1), a party must file any objection to a report and recommendation within ten (10) days of the report and recommendation's entry on the docket. Cf. Fed. R. Civ. P. 53(f)(2). The parties shall note and brief any objections as second-Friday motions pursuant to the court's Local Civil Rules. See Local Rules W.D. Wash. LCR 7(d)(2), 7(e)(2).
b. Method of Filing the Record. The parties' submissions to the Special Master shall be sent to the Special Master and not filed on the court's docket. Pursuant to Rule 53(e), the Special Master shall serve any reports and recommendations on the parties by filing the report and recommendation on the docket. If any party objects to a report and recommendation of the Special Master, it shall be the objecting party's responsibility to file on the docket the objection and the record materials necessary to review the report and recommendation, including any transcripts of proceedings before the Special Master and any documents submitted by the parties in connection with the Special Master's report and recommendation. Failure to provide the record shall constitute grounds for the court to overrule the objection.
c. Standards of Review of the Special Master's Decisions. Pursuant to Rule 53(f)(3)-(4), the court shall review de novo all objections to findings of fact and conclusions of law recommended by the Special Master. Pursuant to Rule 53(0(5), the court may set aside the Special Master's ruling on a procedural matter only for an abuse of discretion.
10. Compensation. Pursuant to Rules 53(b)(2)(E) and 53(g), the Special Master's hourly fee shall be $375.00 an hour, and the Special Master may propose to the court the use of associates and administrative staff at a lower billing rate. At the end of each month in which the court utilizes the Special Master's services, the Special Master shall prepare and provide an invoice to counsel for Veridian and Eddie Bauer. The Special Master shall bill each side for half of the hourly fees unless the court directs otherwise. The Special Master may recommend terms as part of her reports and recommendations. The parties may object to any bill from the Special Master, and the court will review any challenged bill. In the absence of a challenge, the parties shall pay the Special Master's invoices within fourteen (14) days of receipt.
11. Amendments. Pursuant to Rule 53(b)(4), the court may amend this order at any time after notice to the parties and an opportunity to be heard.13325391332539
RULE 53 DECLARATION OF MICHELLE PETERSON
I declare under penalty of perjury that the following is true and correct:
1. Federal Rule of Civil Procedure 53(b)(3) requires that, prior to the entry of an order appointing a master, the master must file (a) "an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. § 455; and (b) if a ground is disclosed, the parties, with the court's approval, waive the disqualification."
2. 28 U.S.C. § 455 provides, in part:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
1. Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
2. Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
3. Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
4. He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
5. He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
3. I am not aware of any ground under § 455 that would disqualify me from serving as special master in this matter.
