Hudson v. Nabisco Brands, Inc., 84-1133

• Citation: 758 F.2d 1237
• Decision Date: 09 April 1985
• Docket Number: No. 84-1133,84-1133
• Parties: 102 Lab.Cas. P 11,443, 2 Fed.R.Serv.3d 367 Henry HUDSON, Plaintiff-Appellant, v. NABISCO BRANDS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1237

758 F.2d 1237

102 Lab.Cas. P 11,443, 2 Fed.R.Serv.3d 367

Henry HUDSON, Plaintiff-Appellant, v. NABISCO BRANDS, INC., Defendant-Appellee.

No. 84-1133.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1984.

Decided April 4, 1985.

As Amended April 9, 1985.

William E. Elston, Jr., Chicago, Ill., for plaintiff-appellant.

Georgeanne Tilson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.

Before FLAUM, Circuit Judge, and PELL and WISDOM, ^* Senior Circuit Judges.

PELL, Senior Circuit Judge.

Appellant, Henry Hudson, plaintiff below, appeals from a judgment of the district court granting costs in the amount of $831.30 to appellee, Nabisco Brands, Inc., pursuant to appellee's motion to assess costs. The district court previously had entered summary judgment in favor of appellee. The sole issue raised by appellant is whether the district court abused its discretion in assessing in favor of appellee the costs associated with appellant's deposition. The district court entered its costs order after referring the matter to a magistrate, acting as a special master, who entered an order granting appellee's motion. Appellee contends that appellant waived his right to have this court address the merits of the costs award by failing to file written objections to the magistrate's order.

I. THE FACTS

Appellee discharged appellant, an eighteen-year employee, on January 14, 1981. Appellant's union filed a grievance protesting appellant's dismissal, but, when that procedure failed to reach a favorable resolution, the union voted, in late April or early May of 1981, not to take the grievance to arbitration. Appellant learned of this vote on the day it occurred. Shortly thereafter, appellant retained counsel, who did not file this suit until May 18, 1982.

The suit alleged wrongful discharge on the part of appellee and a breach of the duty of fair representation by the union and several of its officers. Labor-Management Relations Act of 1947 Sec. 301, 29 U.S.C. Sec. 185. On August 30 and September 17, 1982, appellee deposed appellant, the transcript of which encompasses three hundred fifty pages. Several months later, appellee filed a motion for summary judgment based upon statute-of-limitations grounds. The district court granted appellee's motion on March 25, 1983.

Appellee subsequently filed a motion to assess $881.30 as costs against appellant, an amount equal to the charges incurred by appellee in obtaining the original transcript of appellant's deposition. Appellee did not seek to have the cost of duplicate transcripts Section 636(b)(2) provides:

assessed. The district court then referred the matter of costs to a magistrate "as a Special Master subject to the provisions of 28 U.S.C. Sec. 636(b)(2) and Rule 53, [Federal Rules of Civil Procedure], [to] prepare a report and recommendation of motion to assess costs."

A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.

28 U.S.C. Sec. 636(b)(2). Rule 53 of the Federal Rules, entitled "Masters," delineates the powers and duties of the special master as well as the procedures with which the parties must comply in a proceeding before a master. Among other provisions, the rule states: "In an action to be tried without a jury the court shall accept the master's findings of facts unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties." Fed.R.Civ.P. 53(e)(2).

After a number of hearings and submission of memoranda, the magistrate, in a minute order, granted appellee's motion to assess costs to the extent of $831.30 and returned the cause to the district court. Appellant filed no objections to the magistrate's order. Three weeks later, the district court entered the following minute order: "Pursuant to the Magistrate's order dated December 5, 1983, costs [are] assessed in favor of defendant Nabisco Brands, Inc. and against the plaintiff, Henry Hudson in the amount of $831.30." Neither the magistrate nor the district court explained why the award was for $831.30 while appellee's motion sought $881.30. Appellant appeals from the judgment entered pursuant to the district court's order.

II. CONTENTIONS OF THE PARTIES

Appellant's principal claim on appeal is that an extensive deposition of appellant was not "reasonable and necessary to properly prepare" appellant's case. Therefore, appellant argues, the costs connected with the deposition should not be assessable. The sources of appellant's "reasonable and necessary" requirement for the award of deposition costs are the general costs statute, 28 U.S.C. Sec. 1920, and cases such as SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 180 (7th Cir.1979). Appellant claims that the deposition was not necessary because the appellee could derive from the face of the complaint all the information that it used to make its motion for summary judgment. Appellant does acknowledge that the district court's consideration of the summary judgment motion preceded the Supreme Court's decision in Del Costello v. International Brotherhood of Teamsters, which, resolving a great divergence of judicial authority, set six months as the appropriate statute of limitations for most section 301 suits. 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

Appellee's response on the merits contends that the district court's decision to award costs was not an abuse of discretion. Appellee also claims that, although references to plaintiff's deposition were not extensive in the motion for summary judgment, nonetheless the deposition was reasonably necessary to the preparation of the motion. Appellee notes that appellant's deposition revealed information that established the untimeliness of the complaint, despite the fact that the complaint stated a cause of action on its face. In particular, although the complaint did not refer to the time when appellant became aware that the union had decided not to pursue his case to arbitration, the deposition disclosed this information, which was necessary for the success of the summary judgment motion. Additionally, appellee notes that the deposition helped to assure counsel that appellant would have no grounds upon which to base a claim of equitable tolling. Finally, appellee contends that a deposition of a party Prior to reaching the merits, however, appellee asserts that appellant waived his right to contest the costs award by failing to file objections to the magistrate's order granting costs. Appellee alleges that both rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. Sec. 636 required appellant to file written objections to the magistrate's proposal within ten days. Thus, the argument goes, the failure to file objections waives the right to appeal the subsequent district court judgment adopting the magistrate's recommendations. The basis for the waiver argument, adopted to varying extents by most courts of appeals with respect to references to magistrates under section 636(b)(1) but one of first impression in this circuit, is found mainly in the efficiency goal underlying the Magistrate's Act; that is, to relieve the litigation burden on the federal district courts. Appellee argues that, if the district court must undertake an independent analysis of the entire case even in the absence of objections, then most of the time saving benefits from using a magistrate would be lost.

plaintiff is always essential to the preparation of a defense.

Appellant's initial brief did not anticipate the waiver argument, and he chose not to file a reply brief. In oral argument, appellant contended that the waiver rule was inapplicable to this case. He noted that rule 72(b) and section 636 both refer to objections to a magistrate's recommendations or proposed findings. In this case, the magistrate denominated his disposition of the motion for costs as an order. The entire order, except for a provision returning the case to the district court judge, stated: "Defendant Nabisco Brands, Inc.'s motion to assess costs is granted in the amount of $831.30." The district court then entered an order adopting the magistrate's order. Because the magistrate denominated his disposition as an order, appellant makes the semantic argument that the provisions relating to objections to a magistrate's recommendations or proposed findings are inapplicable.

III. WAIVER OF OBJECTIONS

Appellee bases its waiver argument upon rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. Sec. 636. The title of rule 72 is "Magistrates, Pretrial Matters." The rule was adopted effective August 1, 1983, while the issue of costs was still before the magistrate. The only portion of rule 72 set out by appellee in its brief states:

The magistrate shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate. The clerk shall forthwith mail copies to all parties.

A party objecting to the recommended disposition of the matter shall promptly arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make...