Personalized Media Communications, LLC v. Echostar, 2:08cv070 (9/4/12)
Judge: Roy Payne
Holding: Order from Show Cause Hearing on Failure to Meet and Confer
Just when you think you've seen everything - something like this comes along.
This order was the result of a show cause hearing Judge Payne held on August 24, 2012 to determine whether Defendants Rovi Guides, Inc. and TVG-PMC, Inc. (collectively, “Rovi”) should be sanctioned for their failure to meet and confer with the other parties in this case regarding the establishment of a docket control order as ordered on July 17, 2012.
Judge Payne concluded that while no sanction would be imposed, Rovi would instead be ordered under Rule 16(f)(2) to pay all attorney fees and expenses incurred by the other parties in connection with meeting and conferring and preparing their Joint Statement and also with the preparation for and attendance at the August 24, 2012 Show Cause hearing. Here's the factual background.
On July 10, 2012, the Court ordered plaintiff to join Rovi as a necessary party, and on July 17, 2012, the Court entered an Order providing that “[a]ll parties are ordered to meet and confer about a new Docket Control Order, and they shall include counsel for Gemstar, and submit a proposed order to the Court, noting any areas of disagreement." Plaintiff and defendants Echostar and DISH Network complied with the order to meet and confer, and included Rovi in that process. On August 7, they filed a Joint Statement setting out the results of their efforts, which included the following:
“However, when [Rovi] announced its intention to file a ‘Notice of Non-Consent to the Magistrate Judge,’ it declined to participate further in this filing regarding a new docket control order.”
Hmm. Presumably intrigued at this novel approach to compliance with court orders, the Court set a Show Cause hearing on August 24, 2012 (Dkt. No. 387) to determine whether Rovi did, in fact, decline to participate as ordered and, if so, why.
At the Show Cause hearing, Rovi admitted through its counsel that the above report was accurate, and that because of its refusal to participate, Rovi’s position on all scheduling issues is not shown anywhere in the record. The refusal to participate rendered the resulting Joint Statement an incomplete document and a waste of time for the parties and the Court. So why did it refuse to participate? "The primary justification offered by Rovi," Judge Payne noted, "was that it had decided not to consent to trial before a magistrate judge and was concerned that any participation in the scheduling process, even if ordered by the Court, would constitute a waiver of its decision not to consent.
No, I'm not making this up. They really did argue that.
At the hearing Rovi conceded that there was no statutory or case law directly supporting its fears in this regard, and the “best” case that it could cite to the Court was Altier v. Worley Catastrophe Response, LLC, 2012 WL 161824 (E.D. La. Jan. 18, 2012). Altier dealt with the authority of a magistrate judge in a consent case to rule on a motion to intervene by a party who did not consent. That court decided that the magistrate judge did have authority to determine the motion to intervene despite the lack of consent. But Judge Payne concluded that "nothing in the opinion even suggests that compliance with the pretrial orders of the magistrate judge could be construed as waiving a lack of consent to trial. Indeed, it has been the settled law in the Fifth Circuit for a generation that even fully participating in a jury trial before a magistrate judge does not waive the need for written consent by a party added after the case had originally been referred to the magistrate judge under §636(c). If participating in a jury trial before a magistrate judge, without registering any objection, does not waive the requirement of written consent, there can be no good faith argument that complying with an order to meet and confer about a schedule, while expressly noting the lack of consent, could constitute waiver." (Internal citations omitted).
Rovi also articulated a concern that this case had not been referred to the undersigned by a written order of the Court, but rather had simply been referred by the Clerk upon receipt of consent forms from the original parties, but Judge Payne noted that this concern was factually wrong - a written Order of Reference, signed by Judge Gilstrap, was filed into the record of this case on January 3, 2012 referring the case to him.
In conclusion, Judge Payne found that there was "absolutely no reason" for Rovi to refuse to comply with the order to meet and confer and report to the Court. Accordingly, he ordered the plaintiff Personalized Media Communications, LLC and defendants EchoStar Corp. and DISH Network Corp. to serve upon counsel for Rovi within 10 days a statement for the fees and expenses described above, which Rovi is ordered to pay within 10 days thereafter.