This reports
on a selection of recent cases of significance to courts and those who serve
courts as special masters.
I have had
the honor to serve a number of federal courts as special master, court monitor,
technical advisor, and one of a three-person committee of court monitors.
Courts
appoint judicial adjuncts in almost all areas of the law and for a variety of
purposes. Often they are appointed in federal court as Special Masters under
Rule 53. Sometimes they are called Court Monitors. Other terms are Technical
Advisors, Compliance Officers and the like. I have published elsewhere on the use of such
adjuncts. The terminology differs; all have in common an obligation to assist
the court and facilitate resolution of case-specific issues with fairness to
the parties.
1.
What relationships between a law firm and a special master are
inconsistent with the law firm’s participation in a case?
A law firm,
Rao Law Group, sought to enter its appearance for plaintiff to substitute for
another firm in the midst of a complex commercial dispute. A special master was
already involved to the tune of a half million dollars in invoices. Defendant objected due to prior relationships
between the special master and Rao. Rao had recommended the special master for
appointment; Rao and the special master had co-authored articles with one
another and had done business together. The federal district court dened Rao
Law Group’s request to enter the case. The Court found that, if Rao was in the
case, conflict standards for special masters would have prevented the special
master from taking the original appointment.
C.D.S. Inc. v. Zetler, 2017 U.S. Dist. LEXIS 43159
(S.D.N.Y. Mar. 23, 2017)
2.
Is there a difference between a “special master” and a “court monitor”?
In a school
desegregation case, filed in 1965, the court continues its oversight with the
assistance of an appointed “Court Compliance Officer” who is tasked with “monitoring
the integration efforts of the Tangipahoa Parish School System.” One ground for
an appeal from an order on a change in the CCO’s compensation was that the
district court had referred to the CCO as a “special master.” The Fifth Circuit
held that the court’s inherent power to appoint judicial adjuncts is not
meaningfully different from the power to appoint adjuncts under Rule 53 as
special masters.
The
fact that the district court referred to Massey as a special master is a distinction
without a difference. Although the CCO position was created pursuant to the
court's inherent authority in fashioning equitable remedies, see Ex
parte Peterson, 253 U.S. 300, 312, 40 S. Ct. 543, 64 L. Ed. 919 (1920), the
Board points to no authority to support its argument that the court's inherent
power differs in any meaningful way from its authority pursuant to Rule 53 to appoint special
masters, see Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th
Cir. 1982) ("Beyond the provisions of [Rule 53] for appointing and making references to Masters, a
Federal District Court has the inherent power to supply itself with this
instrument for the administration of justice when deemed by it essential."
(quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir.
1956)) (internal quotation marks and citations omitted)), amended
in part, vacated in part, 688 F.2d 266
(5th [*202] Cir. 1982). Therefore, the district court's
characterization of Massey as a special master was not an abuse of discretion.
Moore v. Tangipahoa
Parish School Bd.,
843 F.3d 198, 201-202 (5th Cir. 2016)
3.
How much “ex parte” is too much?
Rule 53
requires a special master appointment order to address "the circumstances,
if any, in which the master may communicate ex parte with the court or a
party." Fed. R. Civ. P. 53(b)(2)(B). The Advisory Committee notes to the
2003 amendments recognize that ex parte communications present "troubling
questions." Fed. R. Civ. P. 53, Advisory Committee Notes (2003
Amendments). In ruling on a motion for attorney’s fees, the court here
considered whether its ex parte communications with the special master – which
were permitted under the appointment order – would warrant disqualification
under the standards for judicial disqualification. There was no inappropriate communication, the
court concluded.
In
this case, Judge Schwab's order appointing Mr. Stroyd expressly
stated that "the Special
Master may communicate with the Court ex parte on all matters as to
which the Special Master has
been empowered to act." (Order dated 9/6/13, ECF No. 120.) All of the
communications between Mr. Stroyd and the undersigned pertained
directly to matters within the scope of Mr. Stroyd's appointment. This
Court has not obtained any extrajudicial information concerning the parties or
this litigation that would warrant disqualification of the undersigned pursuant
to §455. Moreover, the Court's review is plenary as to both the factual
and the legal determinations set forth in the Special Master's Report and
Recommendation. Consequently, the Court finds no merit to Plaintiff's objection
insofar as it is premised on communications that may have occurred between
Mr. Stroyd and this Court.
Arneault v. O'Toole, 2016 U.S. Dist. LEXIS 166408, *14
(W.D. Pa. Dec. 2, 2016)
4.
Can a district court consider additional information in ruling on an
appeal from a special master’s decision?
This was a
case arising from the July and August 2006 rocket attacks launched by Hezbollah
into northern Israel. Plaintiffs, were victims and sued Iran and North Korea
under the state-sponsored terrorism exception to the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq. ("FSIA").
Codified at 28 U.S.C. § 1605A, the exception provides "a federal
right of action against foreign states" that sponsor terrorist acts. Haim
v. Islamic Republic of Iran, 784 F.Supp.2d 1, 4 (D.D.C. 2011).. A special
master heard the evidence and made findings which were appealed to the federal
district court.
Plaintiffs
did challenge the Special Master's
findings of facts or the master’s application of the law. Instead, they asked
that additional information be considered - information that not only was
available prior to the issuance of the Special Master's reports, but was not provided in response to
numerous requests by the Special
Master for clarification. The plaintiffs wanted a different
outcome. The court held that new information cannot be submitted for the
district court’s review of a special master decision.
Findings
of fact and conclusions of law are reviewed de novo. Fed. R.
Civ. P. 53(f)(3)(4). Significantly, de novo review "does
not necessarily mean a review that includes the submission of new evidence,
particularly when, as in the instant case, evidentiary proceedings previously
occurred before the Special Master," Commissariat
a l'Energie Atomique v. Samsung Electronics Co., 245 F.R.D. 177, 179 (D.
Del. 2007), and the record is "sufficiently developed" to permit the
Court to "merely conduct [*29] a de novo review"
of the challenged decisions and make "its own independent
determination." Lubyv. Teamsters Health, Welfare and Pension Trust
Funds, 944 F.2d 1176, 1185 (3d Cir. 1991)).
The
plain language of Rule 53(f) coupled
with the "sufficiently developed" record before the Special Master compels the
conclusion that the Court, faced with objections to the Special Master reports, is under
no obligation to consider new evidence. The Court is guided by the fact that
the rules governing review of a Special
Master's determinations are analogous to those which guide federal
district courts sitting in an appellate capacity of rulings by magistrates and
bankruptcy courts. In those situations, courts need not consider new evidence.
Kaplan v. Hezbollah, 2016 U.S. Dist. LEXIS 137938, *28-29
(D.D.C. Sept. 29, 2016)
5.
Special Master Appointment Order in J.F.
v. Abbott Labs, April 5, 2017, 2017 U.S.Dist. LEXIS 52098.
The order in
this case is significant in several respects: a) its detailed list of special
master roles, b) its anticipatory identification of the “what ifs” of possible
roles which the master might later play in the case, c) its allowance of the
master communicating directly with a party (and thus not through the party’s
attorney) in mediation or negotiation, and d) its address of possible future
changes in the order’s ex parte
communication provisions. (this is the first available text from the court, via
Lexis, and without Lexis’ editorial review; before quoting from this elsewhere,
consult the original docket or a reliable research tool).
J.F. v. Abbott Labs.
United
States District Court for the Southern District of Illinois
April 5,
2017, Decided
Case No.
14-CV-847-NJR-SCW Case No. 15-CV-702-NJR-SCW
-->
*
J.F., a minor by BEATRICE SIFUENTES individually as next
friend of J.F., et al., and E.R.Q., a minor by CHRISTINA RAQUEL individually as
next friend of E.R.Q., Plaintiffs, vs. ABBOTT LABORATORIES, INC., Defendant.
On March 27, 2017, the Court
entered a Notice and Order regarding the potential appointment of a Special
Master. (Doc. 585). The Order directed the parties to "file any objections
to the Court's intent to appoint the Honorable Daniel J. Stack [Ret.] as
Special Master… on or before April 3, 2017." (Doc. 585, p. 2). The
deadline to object has passed. Plaintiffs did not file an objection; Defendant
filed an affirmative consent to the appointment of the Honorable Daniel J.
Stack as Special Master (Ret.). (Doc. 594).
With
no objection to the Court's proposal to appoint The Honorable Daniel J. Stack
(Ret.) as Special Master, the Court enters this Order of Appointment in the cases
of Raquel, Sifuentes, Pyszkowski
(E.P.) and Pyszkowski (C.P.). Judge
Stack's contact information
is as follows:
This
appointment is made pursuant to Federal Rule of
Civil Procedure 53 and the inherent authority of the Court.1 As Rule 53 requires, the Court sets out
below the duties and terms of the Special Master and reasons
for appointment and directs [*2] the Master to "proceed with all reasonable
diligence." FED. R. CIV. P.
53(b)(2).
Rule 53(a)(1)(A) states the Court may appoint a Special Master to
"perform duties consented to by the parties." In addition, Rule 53(a)(1)(C) states the Court may appoint a Special Master to
"address pretrial and posttrial matters that cannot be effectively and
timely addressed by an available district judge or magistrate judge of the
district." The Court has reviewed legal authority addressing the duties of
a Special
Master that are
1
"Beyond the provisions of [Fed. R. Civ. P.
53] for appointing and making references to Masters, a federal
district court has 'the inherent power to supply itself with this instrument
for the administration of justice when deemed by it essential.'" Schwimmer v.
United States, 232 F.2d 855, 865 (8th Cir. 1956) (quoting In re:Peterson, 253 U.S. 300, 311 (1920)); see Ruiz v. Estelle, 679 F.2d 1115, 1161 n. 240 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) (same); Reed v.
Cleveland Bd. of Educ., 607 F.2d 737, 746 (6th Cir. 1979) (the authority to appoint "expert advisors or
consultants" derives from either Rule 53 or the Court's inherent
power). permitted
under the Federal Rules of Civil Procedure and Article III of the
Constitution.2
Consistent
with this legal authority and the currently-anticipated needs of the Court, and
considering that the parties do not object, the Court holds that the Special
Master shall [*3] have the authority to perform the following duties.3
x
Evaluate the parties' objections to deposition designations and make
recommendations and reports to the Court on these objections.
Given
the fast approaching trial and often unexpected last minute filings, the Court reserves the right to expand the
Special Master's duties as follows:
x
Evaluate any motions in limine and
provide the Court with formal and informal recommended rulings on those
motions.
x
Evaluate any other motions the parties may file, and provide the Court with
formal and informal recommended rulings on those motions.
x
Make formal or informal recommendations and reports to the parties, and make
recommendations and reports to the Court, regarding any matter pertinent to the
above- listed duties.
x
Communicate and meet with the parties and attorneys as needs may arise in order
to permit the full and efficient performance of these duties.
x
Employ staff as may be necessary to assist the Special Master in performing his
duties. The Special Master shall incur only such fees and expenses as may be
reasonably [*4] necessary to fulfill his duties.
2 See generally FED. R. CIV. P.
53, advisory committee's notes, 2003 amendment (discussing the
range of duties and authority of a Special Master); Appointing Special Masters and Other Judicial Adjuncts: A
Handbookfor Judges (5th ed. 2013).
3
This list is meant to be illustrative, not comprehensive. The Court may amend
this Order to add additional duties. With regard to the "Initial
Duties" listed here, the Court will meet with the Special Master to
determine: (1) which motions the Court will rule upon itself without first
receiving a formal, written recommended ruling, and (2) which motions it will
ask the Special Master to provide a formal, written recommended ruling should
the need arise.
x Assist with preparation for
attorney conferences (including formulating agendas), court scheduling, and
case management.
x
Assist with legal analysis of the parties' motions or other submissions,
whether made before, during, or after trials, and make recommended findings of
fact and conclusions of law.
x
Direct, [*5] supervise, monitor, and report upon implementation and
compliance with the Court's Orders, and make findings and recommendations on
remedial action if required.
x
Propose structures and strategies for attorneys fee issues and fee settlement
negotiations, review fee applications, and evaluate parties' individual claims
for fees, as may become necessary.
Rule 53(b)(2)(B) directs the Court to set forth "the circumstances, if
any, in which the
[Special
Master] may communicate ex parte with the court or a party."
The Special
Master may communicate ex
parte with the Court at the Special Master's discretion,
without providing notice to the parties, regarding logistics, the nature of his
activities, management
of the litigation, and other appropriate procedural matters, as well as to
assist the Court with legal analysis of the parties' submissions. The Special [*6] Master
may communicate ex parte with any
party or his attorney, as the Special Master deems
appropriate, for the purpose of ensuring the efficient administration and
management and oversight of this case, and for the purpose of mediating or
negotiating a resolution of any dispute related to this case. The Special
Master shall not communicate to the Court any substantive matter
the Special
Master learned during an ex
parte communication between the Special Master and any
party.4
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 [Special Master's]
activities." The Special Master shall maintain
normal billing records of his time spent on this matter, with reasonably
detailed descriptions of his activities and matters worked upon. If the Court
asks the Special Master to submit a formal report or
recommendation regarding any matter, the Special Master shall submit
such report or recommendation in writing, for filing on the case docket. The
Special Master need not preserve for the record any documents created by the
Special Master that are docketed in this or any other court, nor any documents
received [*7] by the Special Master from counsel or parties in this case.
4
The Court may later limit the Special Master's ex parte communications with the Court
with respect to certain functions, if the role of the Special Master
changes. See, e.g., In re: Propulsid
Products Liab. Litig., 2002 WL 32156066 (E.D. La. Aug. 28, 2002) (after the
Special
Master was given additional mediation duties, the scope of his ex parte communications with the parties
and the Court, as well as his record-keeping obligations, changed); Rule 53(b)(4) (noting that an order of appointment may be amended). On
the other hand, such imposition of different limits on ex parte communications does not necessarily require amendment of
this Order.
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 [Special Master's]
orders, findings, and recommendations." The Special Master
shall either: (1) reduce any formal order, finding, report, ruling, or
recommendation to writing and file it electronically on the case docket via
Electronic Case Filing ("ECF"), or (2) issue any formal order,
finding, report, ruling, or recommendation on the record before a court
reporter. Given the expedited schedule [*8] in this case and pursuant to the Court's authority under Rule 53(f)(2), any party may file an objection to an order, finding,
report, ruling, or recommendation by the Special Master within 7 calendar days of the date it was
filed; failure to meet this deadline results in permanent waiver of any
objection to the Special Master's orders, findings, reports, rulings, or
recommendations. 5 Absent timely objection, the orders, findings, reports,
rulings, and recommendations of the Special Master shall be
deemed approved, accepted, and ordered by the Court, unless the Court
explicitly provides otherwise.
If
the Special Master issues an informal ruling or order that is not on the record
either orally, via email, or through other writing, and a party wishes to
object to that ruling or order, the party shall ask the Special Master to
formalize the ruling or order by filing it on the docket or appearing before a
court reporter. Such request shall be made within three days of issuance of the
informal order or ruling, else the opportunity to object shall be waived. The
procedures and deadlines outlined in this section shall then apply.
5 Rule 53(f)(2) provides that parties may file objections "no later
than 21 days after a copy of the [Special Master's order,
report, or recommendations] is served, unless
the court sets [*9] a different time."(Emphasis added). Motions for extensions of time to
file objections will not normally be granted unless good cause is shown. The Special
Master may, however, provide in his order, finding, report, or
recommendation that the period for filing objections to that particular
document is some period longer than 7 calendar days, if a longer period appears
warranted
As provided in Rule 53(f)(4,5), the Court shall decide de novo all objections to conclusions of law made or recommended by
the Special
Master; the Court shall set aside a ruling by the Special
Master on a procedural matter only for an abuse of discretion. The
Court shall retain sole authority to issue final rulings on matters formally
submitted for adjudication, unless otherwise agreed by the parties, and subject
to waiver of objection to written orders or recommendations as noted above.
Rule 53(b)(2)(E) states that the Court must set forth "the basis,
terms, and procedure
for fixing the [Special Master's] compensation;" see also Rule 53(g) (addressing compensation).
The
Special
Master will be paid $400 per hour for working time, plus [*10]
reimbursement for reasonable travel and other expenses incurred by the Special
Master. The fees and expenses of the Special Master are
to be divided evenly between the parties. The Special Master may
employ other persons to provide clerical and secretarial assistance; such
persons shall be under the supervision and control of the Special Master,
who shall take appropriate action to ensure that such persons preserve the
confidentiality of matters submitted to the Special Masters for review."
Rule 53(b)(3)(A) notes that the Court may enter an Order of appointment
"only after the
[Special
Master] files an affidavit disclosing whether there is any ground
for disqualification under 28 U.S.C. §
455." See also Fed. R. Civ. P
53(a)(2) (discussing grounds for disqualification). The required
affidavit has been submitted, disclosing no grounds for disqualification. (Doc.
586).
The
parties and their counsel, including their successors in office, agents, and employees, shall fully cooperate
with the Special Master, and any staff or consultant employed by
the Special
Master, and observe faithfully the requirements of any orders of
the Court and rulings by the Special Master. The Parties
shall timely comply [*11] with rulings of the Special Master issued
pursuant to this Order. Pursuant to Rule 53(c)(2), the Special Master may, if
appropriate, "impose on a party any noncontempt sanction provided by Rule
37 or 45, and may recommend a contempt sanction against a party and sanctions
against a nonparty." As an agent and officer of the Court, the Special
Master (and those working at his direction) shall enjoy the same
protections from being compelled to give testimony and from liability for
damages as those enjoyed by other federal judicial adjuncts performing similar
functions.6
The
parties will make readily available to the Special Master any and all individuals, information,
documents, materials, programs, files, databases, services, facilities and
premises under their control, which the Special Master requires to perform his
duties. The parties will make readily available to the Special Master any and
all facilities, files, databases, computer programs and documents necessary to
fulfill the Special Master's functions under this Order.
6 See, e.g., Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454-55 (9th Cir. 1993) (applying the doctrine of absolute quasi-judicial immunity
to a Special Master).
The Special Master may require reports from any party in a
format [*12] specified by the Special Master as reasonably required to enable
the Special Master to perform all assigned duties.
End of Document
.
