Ehlen Floor Covering, Inc. et al v. Lamb et al, No. 2:2007cv00666 - Document 198 (M.D. Fla. 2010)

Court Description: OPINION AND ORDER overruling as moot 186 Appeal of magistrate judge ruling to district court filed by Pacific Life Insurance Company; overruling 195 Appeal of magistrate judge ruling to district court filed by Edward Ehlen, Thomas Ehlen, Ehlen Floor Coverings Retirement Plan, Francis Ehlen, Ehlen Floor Covering, Inc. Signed by Judge John E. Steele on 7/8/2010. (RKR)

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Ehlen Floor Covering, Inc. et al v. Lamb et al Doc. 198 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION EHLEN FLOOR COVERING, INC., a Florida corporation, EDWARD EHLEN, THOMAS EHLEN, FRANCIS EHLEN, and DOLORES EHLEN, individuals, and EHLEN FLOOR COVERINGS RETIREMENT PLAN, Plaintiffs, vs. Case No. 2:07-cv-666-FtM-29DNF JEFFREY LAMB, individually, BRIAN YOUNGS, individually, THOMAS WANDERON, individually, LWY ASSOCIATES, INC., formerly known as Tax Accounting and Financial Associates, Inc., INDEPENDENT ADVISORS OF FLORIDA, INC., formerly known as Foundation Asset Management, Inc., THE GRADUATE GROUP, INC., a Florida corporation, PACIFIC LIFE INSURANCE COMPANY, a Nebraska corporation, INNOVATIVE PENSION STRATEGIES, INC., and JOSEPH PENCHANSKY, Defendants. ___________________________________ OPINION AND ORDER This matter comes before the Court on plaintiffs Objection to Magistrate Order (Doc. 193) on Motion for Reconsideration (Doc. 185) as to Order on Motion to Compel (Doc. 179) (Doc. #195), filed on June 7, 2010. Pacific Life Insurance Company (Pacific Life) filed an Opposition to Plaintiffs Objection to the Magistrate s Discovery Order (Doc. #196) on June 21, 2010. Also before the Dockets.Justia.com Court is Pacific Life s Objection to Order on Motion to Compel (Doc. #186)1 and plaintiffs Memorandum in Opposition (Doc. #190). Plaintiffs object to the Magistrate Judge s May 21, 2010 Order (Doc. #193) granting Pacific Life s Motion for Clarification and/or Reconsideration (Doc. #185) of the Magistrate Judge s April 8, 2010 Order (Doc. #179) resolving motions to compel the production of documents. The magistrate judge reconsidered, and modified, his prior ruling as to Request No. 11. Plaintiffs argue that the magistrate judge had no authority to reconsider the prior ruling, and even if he did have such authority, the magistrate judge erred in his substantive modification of the prior Order. A magistrate judge resolves a discovery motion by entry of a non-dispositive order pursuant to 28 U.S.C. § 636(b)(1)(A) and M.D. Fla. L.R. 6.01(a). The court s ability to reconsider and revise a prior order is not dependent upon a change of law or facts, but is within the discretion of the judge. An order may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities. 54(b). Fed. R. Civ. P. See, e.g., Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970)(an interlocutory order can be modified or rescinded at any time before it becomes final);2 Mosher v. 1 The Objection was filed simultaneously with a Motion for Clarification and/or Reconsideration (Doc. #185). 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. (continued...) -2- Speedstar Div. of AMCA Int l, Inc., 52 F.3d 913, 917 (11th Cir. 1995)(district always has the authority to modify a prior ruling to conform to changes in law); Filebark v. U.S. Dep t of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009)(a district court is free to reconsider interlocutory orders); Brown v. City of Pittsburgh, 586 F.3d 263, 298 (3d Cir. 2009)(same); Elephant Bute Irrigation Dist. of N.M. v. U.S. Dep t of Interior, 538 F.3d 1299, 1306 (10th Cir. 2008)(every order short of a final decree is subject to reopening at the discretion of the district judge (citation omitted)). Plaintiffs objection that the magistrate judge was without authority to reconsider the prior Order is overruled. A district court reviews an objection to a non-dispositive order of a magistrate judge to determine whether the order was clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). 28 U.S.C. § 636(b)(1)(A); Upon review, the Court concludes that plaintiffs have not established either that the order was clearly erroneous or that it was contrary to law. Therefore, this portion of the objection is overruled. The Court finds that Pacific Life s objection was resolved by the second Order granting reconsideration and limiting production 2 (...continued) 1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. -3- to the Plan at issue. Therefore, its Objection will be overruled as moot. Accordingly, it is now ORDERED: 1. Pacific Life Insurance Company s Objection to Order on Motion to Compel (Doc. #186) is OVERRULED AS MOOT. 2. Plaintiffs Objection to Magistrate Order (Doc. 193) on Motion for Reconsideration (Doc. 185) as to Order on Motion to Compel (Doc. 179) (Doc. #195) is OVERRULED. DONE AND ORDERED at Fort Myers, Florida, this July, 2010. Copies: Counsel of record -4- 8th day of

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