Federal Wrongful Death Motion Appeals – a Lawyer’s Review (FRCP 72)

Federal Wrongful Death Motion Appeals – a Lawyer’s Review (FRCP 72)

The standard of review by a District Judge for a nondispositive motion decided by a Magistrate is whether the decision is “clearly erroneous or is contrary to law”. See, Fed. R. Civ. P. 72(a); and 28 U.S.C. §636(b)(1)(A). In Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. May 22, 2008), a §1983 civil rights wrongful death suit, the Judge summarily affirmed under that standard an appeal from a grant of leave to amend by the Magistrate.

“A motion to amend is generally considered a nondispositive pretrial motion, subject to Rule 72(a) standard of review.” Young v. James, 168 F.R.D. 24, 26 (E.D. Va. 1996). In Young, the amendment sought to rename one of the plaintiffs, destroying the court’s jurisdiction over the cause; and defendants opposed, claiming bad faith, prejudice and futility. The District Judge followed the liberal amendment mandate of Fed. R. Civ. P. Rule 15(a) and Foman v. Davis, 371 U.S. 178, 182 (1962), and affirmed the analysis and holding of the Magistrate in Young as not “clearly erroneous or contrary to the law”. Id. at 27-28.

The Magistrate is “clearly erroneous” only if “the reviewing court…is left with the definite and firm conviction that a mistake has been committed”. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This “clearly erroneous and contrary to law” standard has been followed by North Carolina and other sister Fourth Circuit courts in affirming Magistrates. E.g., Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust Co., 1B, 2006 U.S. Dist. LEXIS 11358, *5 (D. Md. Mar. 20, 2006). Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438, 447-448 (M.D.N.C. 2005).

Under the applicable standard of review, a District Judge substituting his personal decision-making or that of a “reasonable person” on de novo review is reversible error. “Since it does not appear that Judge Spiegel applied the clearly erroneous standard, the case is remanded for consideration under that standard. It seems that Judge Spiegel weighed the evidence de novo and decided that a reasonable person could conclude that there was a coverup. Whether a reasonable person could find evidence of a coverup that may support a finding of the crime-fraud exception to the attorney-client privilege is irrelevant for the purposes of Judge Spiegel’s decision. What is relevant for Judge Spiegel to consider is whether the Magistrate Judge was clearly erroneous when he found that no crime-fraud exception could be found. Therefore, we remand this case to the district court for determination of whether the Magistrate Judge clearly erred in his rejection of crime-fraud exception.” Chesher v. Allen, 122 Fed. Appx. 184, 187-188 (6th Cir. 2005).