Phinney v. Paulshock

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1999
• Docket: 99-1413
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1413



                 LINDA S. PHINNEY, ETC., ET AL.,

                      Plaintiffs, Appellees,



                                v.



               WENTWORTH DOUGLAS HOSPITAL, ET AL.,

                      Defendants, Appellees,


CRAIG PAULSHOCK, M.D.,

                      Defendant, Appellant.

                       ___________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Edwinna C. Vanderzanden, with whom Sanders & McDermott,

P.L.L.C. was on brief, for defendant-appellant.

     Jared R. Green, with whom Mark A. Abramson and Abramson, Reis,

Brown, & Dugan were on brief, for plaintiffs-appellees.


December 8, 1999


SELYA, Circuit Judge.  After a magistrate judge

sanctioned defendant-appellant Craig Paulshock, M.D., for discovery

misconduct, he appealed unsuccessfully to the district court.  He

now appeals to us, asserting that the district court misapplied the

standard of review and that the magistrate judge made clearly

erroneous findings of fact, exceeded his authority by allowing

"complex" medical testimony during the sanctions hearing,

improperly imposed sequestration, arbitrarily denied a continuance,

and misapprehended the burden of proof.  For the reasons set forth

below, we affirm.

  The facts leading to the institution of suit are largely

unrelated to the issues on appeal.  Suffice it to say that Kenneth

J. Phinney died during surgery and his widow (on her own behalf and

on behalf of his heirs and estate) invoked diversity jurisdiction,

28 U.S.C.  1332(a)(1), and brought a medical malpractice action

against a plethora of defendants, including Paulshock (the

attending anesthesiologist).  In the course of pretrial discovery, 

Phinney requested certain information related to a particular

nurse-anesthetist, Elise Jackson (whom Paulshock had entrusted to

administer an anesthetic used in the operation).  The defendants

produced some documents in response to this request, but they

failed to supply Jackson's most relevant  personnel evaluation, at

first ignoring its existence and later, when Phinney learned of it,

claiming that they could not locate the sheet.

  To make a tedious tale tolerably terse, the finger of

suspicion eventually pointed to Paulshock, and Phinney amended her

complaint to allege that he had spoliated evidence.  More than six

months after Phinney's original document request, Paulshock "found"

the evaluation sheet in his house.  When he finally turned it over,

the document proved damning because it revealed that, prior to the

date of the surgery, Paulshock had criticized Jackson's skills and

questioned her integrity.  This information not only strengthened

Phinney's case but also directly contradicted Paulshock's

deposition testimony.

  Citing this and other purported discovery abuses, Phinney

filed a motion for sanctions against a defense attorney and various

defendants (Paulshock included).  Magistrate Judge Muirhead

conducted a five-day evidentiary hearing and dismissed several of

the charges.  The one exception involving Paulshock related to the

Jackson evaluation.  In that regard, the magistrate found Phinney's

allegations to be substantially true and ruled that Paulshock had

intentionally withheld the evaluation sheet and had prevaricated at

his deposition concerning its whereabouts.  See Phinney v.

Paulshock, 181 F.R.D. 185, 200-02 (D.N.H. 1998).  He ordered

Paulshock to pay a sizable monetary sanction to Phinney.  See id.

at 205.

  Paulshock unsuccessfully moved for reconsideration and

then asked the district court to overturn the decision.  He filed

only a general objection (in narrative form) and, when the district

court demanded a concise statement of the grounds undergirding it,

he responded at some length that certain findings, i.e., that he

withheld a document and then lied about it, were not substantiated

and should be set aside.  The district court undertook clear-error

review and rejected Paulshock's asseverations in an unpublished

order.

  Paulshock secured new counsel and pressed forward, asking

us to rectify the situation.  While this appeal was pending, we

learned that the underlying case had been settled and that, as part

of the settlement, the discovery sanction had been paid and

Paulshock had agreed not to seek recoupment.  He had, however,

reserved the right to appeal the magistrate judge's factual

findings.  We questioned whether this reservation was enforceable

or, in the alternative, whether the no-recoupment arrangement

rendered the appeal moot.  Cf. Cordero v. De Jesus-Mendez, 867 F.2d

1, 21 (1st Cir. 1989) (explaining that once a "contempt order has

been complied with, no case or controversy remains," and a pending

appeal is no longer maintainable).

  We think that the jurisdictional question is close, but

we need not resolve it.  Generally speaking, we have the power to

treat a notice of appeal as a request for a writ of mandamus.  See

United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994); United

States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979).  More

specifically, we have indicated in circumstances analogous to those

at bar that if we lack jurisdiction to entertain an appeal from

factual findings that potentially harm the putative appellant's

professional reputation, we may in our discretion treat the notice

of appeal as a petition for mandamus.  See In re Williams, 156 F.3d

86, 93 n.7 (1st Cir. 1998), cert. denied, 119 S. Ct. 905 (1999). 

While we would not take this tack in, say, a case involving

chastisement resulting in mere embarrassment, or a case involving

an unlikely or unsupported claim of serious career damage,

Paulshock's appellate counsel represents that the disputed factual

findings already have caused severe collateral consequences and

will continue to cause such consequences.  These representations

are sufficiently specific and detailed that we are prepared, if

necessary, to exercise our mandamus jurisdiction.  We therefore

proceed to consider Paulshock's arguments.  See Jamison v. Wiley,

14 F.3d 222, 234 (4th Cir. 1994) (adopting such a course); United

States v. Collamore, 868 F.2d 24, 27 (1st Cir. 1989) (same).

  From Paulshock's viewpoint, this victory is short-lived. 

It is a firmly settled rule that a party's appeal of a magistrate

judge's order to the district court delimits his right to further

appellate review.  See Thomas v. Arn, 474 U.S. 140, 147 (1985);

Keating v. Secretary of HHS, 848 F.2d 271, 274-75 (1st Cir. 1988)

(per curiam); see also Malave v. Carney Hosp., 170 F.3d 217, 222

(1st Cir. 1999) (remarking "the bedrock rule of appellate practice

that . . . matters not raised in the trial court cannot be hawked

for the first time on appeal").  The Civil Rules are quite explicit

on this point:

    Within 10 days after being served with a copy

  of the magistrate judge's order [on a

  nondispositive motion], a party may serve and

  file objections to the order; a party may not

  thereafter assign as error a defect in the

  magistrate judge's order to which objection

  was not timely made.



Fed. R. Civ. P. 72(a) (emphasis supplied).  We hold, therefore,

that an objection to a magistrate judge's order must apprise the

district court of all the objector's claims of error, and new

claims of error on the part of the magistrate judge cannot

thereafter be raised in this court.

  This holding, straightforwardly applied, bars the

majority of Paulshock's arguments, as Paulshock failed to raise

them in his objection to the magistrate's order.  Accordingly, we

confine our substantive analysis of the magistrate's order to the

sole issue that has been properly preserved:  the supportability of

his factual findings.

  Like the district court, we review these factual findings

under the "clearly erroneous" rubric.  See 28 U.S.C. 

636(b)(1)(A); Fed. R. Civ. P. 72(a).  This means that we must

accept both the trier's findings of fact and the conclusions drawn

therefrom unless, after scrutinizing the entire record, we "form a

strong, unyielding belief that a mistake has been made."  Cumpiano

v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

  In this instance, Magistrate Judge Muirhead's rescript

recounts in meticulous detail the evidence on which he based his

findings of fact.  See Phinney, 181 F.R.D. at 190-95.  Certain

uncontested facts lend support to his conclusion:  it took

Paulshock eight months to produce the missing personnel evaluation

and, when produced, it turned out to have been in his possession

all along, despite his repeated statements that it could not be

found, that he did not know its whereabouts, and that others should

be queried.  Moreover, the magistrate found, with record support,

that the ultimate production came only after Paulshock learned that

the plaintiff knew he had had the sheet at one time.  See id. at

202.  In sum, the magistrate's findings have deep and sturdy roots

in the record.

  To be sure, the evidence is not totally one-sided. 

Paulshock's counsel adroitly marshals the facts in a forgiving

manner, emphasizes Paulshock's explanation of what transpired, and

accurately notes that the key to the puzzle is Paulshock's

subjective intent.  This Herculean effort falls short.  Although a

party's continuing denials are entitled to some weight in

determining points within his personal knowledge, a trial judge is

not obliged to accept such protestations at face value.  See

Aguilar-Solis v. INS, 168 F.3d 565, 570-71 (1st Cir. 1999) (stating

that when the judge "who saw and heard a witness makes an adverse

credibility determination . . . an appellate court ordinarily

should accord it significant respect").  While we, if writing on a

pristine page, might have resolved the critical issue of intent

differently, we cannot say that the magistrate committed clear

error in finding as he did.  See United States v. Lara, 181 F.3d

183, 195 (1st Cir.) (explaining that "when the evidence gives rise

to competing interpretations, each plausible, the factfinder's

choice between them cannot be clearly erroneous"), cert. denied,

120 S. Ct. 432 (1999); see also Carr v. PMS Fishing Corp., 191 F.3d

1, 7 (1st Cir. 1999) (holding that, for the most part, credibility

determinations are grist for the trier's mill).

  We must touch one last base.  The narrowness of

Paulshock's objection to the magistrate's adverse ruling does not

restrict his right to complain about what the district court

subsequently did (or failed to do).  In this vein, he avers that

the district court compounded the magistrate's alleged error in two

respects.  First, he contends that the district court should have

afforded the magistrate's order plenary review.  His reasoning runs

along the following lines.  The motion for sanctions sought (or,

alternatively, could have yielded) a variety of remedies, including

in an extreme case a default judgment.  See United States v.

Palmer, 956 F.2d 3, 6-7 (1st Cir. 1992).  In this sense, the motion

was potentially dispositive and thus (Paulshock says) the district

court should have reviewed the ensuing order de novo.  This

reasoning is flawed.

  Congress enacted the Federal Magistrates Act in 1968. 

The 1976 amendments to the Act conferred explicit authority upon

district courts to designate magistrate judges to hear pretrial

motions.  See 28 U.S.C.  636(b)(1).  Congress placed an express

limitation on this authority, however, providing that certain

enumerated motions could not be determined by a magistrate.  See

28 U.S.C.  636(b)(1)(A).  Such motions may be referred to a

magistrate for "proposed findings of fact and recommendations for

. . . disposition," but must then be returned to the district judge

for final action.  28 U.S.C.  636(b)(1)(B).

  Each of the two classes of motions comes equipped with

its own standard of review.  If a referred motion is within the

ambit of section 636(b)(1)(A) and not excepted (i.e., to be decided

by the magistrate), then the district court can revise it only when

a timely objection has been filed and "it has been shown that the

magistrate's order is clearly erroneous or contrary to law."  28

U.S.C.  636(b)(1)(A).  If, however, the motion is excepted from

the customary operation of section 636(b)(1)(A) (i.e., to engender

only a magistrate's recommendation), the district court is

directed, upon the filing of a timely objection, to "make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made."  28 U.S.C.

 636(b)(1)(C).  The court thereafter "may accept, reject, or

modify, in whole or in part, the findings or recommendations made

by the magistrate."  Id.

  For many years, federal courts operated under the Federal

Magistrates Act without any further guidance.  In 1983, however,

these statutory provisions were augmented by the adoption of Fed.

R. Civ. P. 72.  In framing the rule, the drafters used the term

"[n]ondispositive matters" to refer to all matters (including

motions) that a magistrate judge can hear and determine, Fed. R.

Civ. P. 72(a), and the term "[d]ispositive motions" to refer to

those motions as to which a magistrate judge can only make a

recommendation rather than a ruling, Fed. R. Civ. P. 72(b).  Rule

72 mirrors the standard-of-review taxonomy described in section

636(b)(1).  It provides that a magistrate's order on a

nondispositive motion shall be modified or set aside by the

district court only if "found to be clearly erroneous or contrary

to law."  Fed. R. Civ. P. 72(a).  Conversely, if a party contests

a magistrate's proposed findings and recommendations on a

dispositive motion, the district judge must "make a de novo

determination."  Fed. R. Civ. P. 72(b).

  We think that the terms dispositive and nondispositive as

used in Rule 72 must be construed in harmony with the

classifications limned in section 636(b)(1).  See generally In re

San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 962 (1st

Cir. 1993) (construing Fed. R. Civ. P. 54(d) in light of 28 U.S.C.

 1920); cf. Marlowe v. Bottarelli, 938 F.2d 807, 813 (7th Cir.

1991) (acknowledging the rule that, whenever possible, courts

should construe statutes and implementing regulations in pari

materia).  This does not mean, of course, that dispositive motions

are those excepted motions specifically enumerated in section

636(b)(1)(A), and no others.  Rather, that enumeration informs the

classification of other motions as dispositive or nondispositive. 

Motions for sanctions premised on alleged discovery violations are

not specifically excepted under 28 U.S.C.  636(b)(1)(A) and, in

general, they are not of the same genre as the enumerated motions. 

We hold, therefore, that such motions ordinarily should be

classified as nondispositive.  See Maisonville v. F2 Am., Inc., 902

F.2d 746, 747-48 (9th Cir. 1990); Thomas E. Hoar, Inc. v. Sara Lee

Corp., 900 F.2d 522, 525 (2d Cir. 1990); see also 14 James Wm.

Moore, et al., Moore's Federal Practice  72.02(7)(b) (3d ed.

1999).  Withal, we caution that a departure from this general rule

may be necessary in those instances in which a magistrate judge

aspires to impose a sanction that fully disposes of a claim or

defense.  See, e.g., Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d

1458, 1462 (10th Cir. 1988) (striking of plaintiffs' pleadings as

discovery sanction reviewed de novo); North Am. Watch Corp. v.

Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 1986)

(dismissal of counterclaim as a discovery sanction reviewed de

novo).

  This case falls within the general rule, not within the

rare exception to it.  Magistrate Judge Muirhead   whatever he

might theoretically have done   in fact imposed only a monetary

sanction.  His order, therefore, was nondispositive and the

"clearly erroneous" standard obtains.  See 28 U.S.C. 

636(b)(1)(A); Fed. R. Civ. P. 72(a).  Indeed, Paulshock himself

apparently recognized as much at an earlier stage of the

litigation:  when he filed his objection to the magistrate's order

in the district court, he denominated it as one filed "pursuant to

Fed. R. Civ. P. 72(a)."

  The second facet of Paulshock's argument also lacks

force.  He calumnizes the district court for concentrating its

efforts on the testimony of three witnesses and short-shrifting the

balance of the compendious record.  We  reject  this initiative. 

For one thing, the bulk of the five-day hearing dealt with matters

other than the Jackson evaluation; none of those matters resulted

in the imposition of sanctions against Paulshock   and none of them

formed any part of Paulshock's assignment of error to the district

court.  Thus, the district court had every right to eschew detailed

consideration of them.  For another thing, regardless of which

evidence the district court deemed most worthy of attention, the

acid test is whether, upon our review of the entire record, the

findings manifest clear error.  See Smith v. F.W. Morse & Co., 76

F.3d 413, 420 (1st Cir. 1996); Cumpiano, 902 F.2d at 152.  Here,

they do not.

  We need go no further.  Concluding, as we do, that the

magistrate's findings were not clearly erroneous and that the

district court properly performed its review function, we reject

Paulshock's appeal.



Affirmed.