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Kiessling v. Rader

United States District Court, D. Nevada

March 20, 2018

DET. RADER P#6099, et al., Defendants.



         Pending before the Court are Defendants Las Vegas Metropolitan Police Department (“LVMPD”), Detective Rader (“Det. Rader”), and Lieutenant Smith's (“Lt. Smith's”) (collectively “Defendants'”) Objections, (ECF Nos. 36, 43, 46), to the Honorable Magistrate Judge Koppe's Orders, (ECF Nos. 33, 38, 39). Plaintiff James Kiessling (“Plaintiff”) filed Responses, (ECF Nos. 37, 47, 50), to Defendants' Objections. Additionally pending before the Court is Plaintiff's Objection, (ECF No. 45), to Judge Koppe's Order, (ECF No. 39), [1] to which Defendants filed a Response, (ECF No. 51).

         I. BACKGROUND

         This case arises from an incident on May 25, 2014, involving an argument between Plaintiff and his ex-wife during a custody exchange. (See Compl. ¶¶ 14-18, ECF No. 1). Plaintiff alleges that the incident resulted in the excessive use of force against him by Defendants Dt. Rader and Lt. Smith. (See id. ¶¶ 56-63). In addition to the claims for relief against Dt. Rader and Lt. Smith, Plaintiff alleges a violation of 42 U.S.C. § 1983 against LVMPD for negligent training, supervision, and retention. (See id. ¶¶ 64-70).

         On December 27, 2017, Plaintiff filed a Motion to Compel requesting discovery in three areas: internal affairs discovery, other instances of excessive force, and personnel files. (See Mot. to Compel, ECF No. 26). In conjunction with these discovery requests, Plaintiff sought attorneys' fees. (Id. at 12-13). Judge Koppe granted the Motion to Compel with respect to the internal affairs discovery as well as other instances of excessive force, and found that attorneys' fees should be awarded. (See Order 5:9-10, 5:20-21, ECF No. 33). Judge Koppe, however, deferred ruling on the personnel files pending review of the documents in camera. (See id. 5:9- 10). After reviewing the personnel files, Judge Koppe ordered the production of two pages in particular and declined to award sanctions with respect to the dispute regarding the personnel files. (See Order 2:13-28, ECF No. 38).

         On February 24, 2017, Plaintiff filed a Motion to calculate attorneys' fees, seeking $11, 860.00 for the preparation of the Motion to Compel, the corresponding Reply, and the Motion for Attorneys' Fees. (See Motion for Attorneys' Fees 3:2-3, 3:27-28, ECF No. 34). Consequently, Judge Koppe ordered that Defendants pay attorneys' fees in the amount of $3, 761.00 within thirty days of the issuance of the Order. (See Order 6:17-18, ECF No. 39).

         Thereafter, Defendants filed the instant three Objections to Judge Koppe's Orders where Defendants request that the Court's ruling on the Motion to Compel, which ordered the production of the internal affairs discovery, other instances of excessive force, and two pages of personnel files, be reversed or modified. (See Objections, ECF Nos. 36, 43). Additionally, Defendants request that the Order granting attorneys' fees be reversed. (See Obj. 5:11-12, ECF No. 46).

         On April 7, 2017, Plaintiff filed his instant Objection to the amount of attorneys' fees awarded, requesting that the Order be modified and the fees recalculated. (See Obj. 8:6-10, ECF No. 45).


         When reviewing the order of a magistrate judge, the order should only be set aside if the order is clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Laxalt v. McClatchy, 602 F.Supp. 214, 216 (D. Nev. 1985). A magistrate judge's order is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm'r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). When reviewing the order, however, the magistrate judge “is afforded broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007). The district judge “may not simply substitute its judgment” for that of the magistrate judge. Grimes v. City and County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988)).


         A. Defendants' First Objection (ECF No. 36)

         In Defendants' First Objection, Defendants seek reversal or modification of Judge Koppe's Order compelling the internal affairs and other instances of excessive force discovery. (Obj. 14:8-9, ECF No. 36). Defendants argue that “[o]n the whole of the record, Defendants believe that the magistrate [sic] findings misapply the law regarding the official information privilege, fail to apply the law regarding the deliberate process privilege, and create a mistake in demanding production of the [Internal Affairs Bureau (“IAB”)] investigation and findings.” (Id. 9:15-18). Defendants claim that Judge Koppe “fails to actually evaluate the motion to compel under Fed.R.Civ.P. 26(b)(1).” (Id. 11:2). Additionally, Defendants argue that the “Court's order does not even consider Fed.R.Civ.P. 26(b)(2)(C)” based on the “lack of specification in Plaintiff's request” that was granted. (Id. 12:16-17). Lastly, Defendants aver that it would be contrary to law to allow the sanctions to stand. (Id. 13:7-8).

         In her Order, Judge Koppe explains that “[i]f the court finds that an insufficient threshold showing has been made for application of the [official information privilege], it will order the disclosure of the material.” (Order 3:17-20, ECF No. 33). Judge Koppe determined there was an insufficient threshold showing because the affidavit was “bare-bones” and did not meet the necessary requirements adopted by the District of Nevada. (Id. 3:22); see Carrillo v. Las Vegas Metro. Police Dep't, No. 2:10-cv-02122-KJD-GWF, 2013 WL 592893, at ...

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