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Springfield Division United States of America, et al v. Dish Network

December 29, 2010

SPRINGFIELD DIVISION UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
DISH NETWORK, L.L.C., DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Wednesday, 29 December, 2010 04:24:57 PM

Clerk, U.S. District Court, ILCD

OPINION The Court now considers Defendant DISH Network, L.L.C.'s "Objection and Appeal From the Opinion and Order of Magistrate Cudmore entered on December 9, 2010" (hereinafter the "Appeal")(d/e 72). For the reasons stated below, Defendant DISH Network, L.L.C.'s ("DISH") Appeal is DENIED. Due to the denial of the Appeal, DISH's "Emergency Motion for a Stay Pending Appeal of the Court's December 9, 2010, Order" (d/e 74) is DENIED AS MOOT.

FACTS The Plaintiffs allege that DISH, through its sales force and its dealers, violated the Telemarketing Sales Rule ("TSR") and the Federal Communication Commission ("FCC") Rule that regulates telemarketing. The Plaintiffs allege that DISH and its dealers: (1) called numbers on the "Do Not Call" List; (2) abandoned calls; and (3) used pre-recorded sales pitches. Among other things, the Plaintiffs allege that DISH authorized dealers to engage in telemarketing on DISH's behalf to sell DISH's products and services. The Plaintiffs also allege that DISH received complaints from consumers regarding the dealers' telemarketing practices. Thus, DISH knew or consciously avoided knowing that the dealers were violating the TSR and the FCC Rule.

Based on these and other allegations, Plaintiff the United States of America filed a Complaint seeking an injunction and civil penalties for violation of the Federal Trade Commission Act. See Complaint (d/e 1). Count I alleged that DISH called telephone numbers on the "Do Not Call" List and caused its dealers to do the same. Count II alleged that DISH abandoned outbound calls and caused dealers to do the same. Count III alleged that DISH provided substantial assistance and support to certain dealers when DISH knew or consciously avoided knowing that dealers were abandoning outbound calls in violation of the TSR. Id. at Counts I-III.

In Counts IV and V, Plaintiffs the Attorneys General of California, Illinois, North Carolina, and Ohio sought injunctions and damages for violations of the Telephone Consumer Protection Act ("TCPA"), 16 C.F.R. Pt. 310; 47 U.S.C. § 227(f)(1). See Complaint at Counts IV-V. Count IV alleged that DISH, either directly or through third parties acting on its behalf, called telephones on the "Do Not Call" List in violation of the TCPA. Count V alleged that DISH, either directly or through third parties acting on its behalf, used pre-recorded sales pitches in violation of the TCPA. See Complaint at Count V. In addition to these federal claims, each state Attorney General also seeks relief under each state's respective statute that prohibit these forms of telephone solicitations. See Complaint at Counts VI-XI.

In an Opinion dated November 2, 2009, the Court denied a motion to dismiss which DISH filed. See d/e 20. On February 4, 2010, the Court denied DISH's "Motion for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) or, in the Alternative, for Reconsideration". See d/e 32.

On July 30, 2010, Plaintiffs State of California, State of Illinois, State of North Carolina, State of Ohio and the United States of America collectively filed their "First Motion to Compel Production of Documents and Answers to Interrogatories". See d/e 47. DISH voluntarily produced certain documents on August 9 and 16, 2010, but that did not resolve the parties' discovery dispute. Thus, United States Magistrate Judge Byron G. Cudmore decided the motion in an Opinion dated December 9, 2010 (hereinafter the "December 9 Opinion"). See d/e 65.

On December 23, 2010, DISH filed its "Objection to and Appeal From the Opinion and Order of Magistrate Cudmore Entered on December 9, 2010." See d/e 72. DISH also filed an accompanying memorandum of law. See d/e 73 (hereinafter the "Memorandum"). Additionally, DISH filed an "Emergency Motion for a Stay Pending Appeal of the Court's December 9, 2010, Order". See d/e 74. Because resolution of the Appeal resolves DISH's emergency motion and both issues can be disposed of favorably towards Plaintiffs without awaiting their response(s), the Court now issues its Opinion.

STANDARD

A magistrate judge has authority to hear matters that are not dispositive of a claim or defense. See Fed.R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A) (the "Magistrates Act"). These include discovery motions. See Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 970 (C.D.Cal. 2010), citing Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.1991) ("Nondispositive issues include discovery sanctions"); Hoar v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)("Matters concerning discovery generally are considered 'nondispositive' of the litigation.").

When a district court considers objections to an appeal from a magistrate judge's rulings on nondispositive matters, the magistrate judge's disposition will be set aside only if it is "clearly erroneous or contrary to law." See Fed.R.Civ.P. 72(a); § 636(b)(1)(A); see also Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006); Bobkoski v. Board of Educ. of Cary Consol. School Dist., 141 F.R.D. 88, 90 (N.D.Ill.1992). Upon review, the "clearly erroneous" standard applies to a magistrate judge's findings of fact and is "significantly deferential, requiring 'a definite and firm conviction that a mistake has been committed.' " Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); see Security Farms v. International Brotherhood of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997); see also Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991) (holding that discovery sanctions are non-dispositive pretrial matters that are reviewed for clear error under Rule 72(a)). By contrast, "[t]he 'contrary to law' standard . . . permits independent review of purely legal determinations by the magistrate judge." F.D.I.C. v. Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D.Cal. 2000), citing Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992) ("[T]he phrase 'contrary to law' indicates plenary review as to matters of law.").

Under the clear error standard of review, "the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made." See Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997). When a discovery order is based upon the interpretation of law, review is ...


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