Opinion
Civil Action No. 3:03-CV-0130-D.
June 9, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff John A. Hoskins, V ("Hoskins") objects to the magistrate judge's April 4, 2004 order denying his motion for leave to take depositions. Concluding that the magistrate judge did not err as a matter of law in denying the motion, the order is affirmed.
I
The background facts of this case are set out in a prior opinion of the court and need not be repeated. See Hoskins v. Kaufman Indep. Sch. Dist., 2003 WL 21517830, at *1-*3 (N.D. Tex. June 30, 2003) (Fitzwater, J.)). Hoskins sues defendant Kaufman Independent School District ("KISD") and KISD Assistant Superintendent Harold Johnson ("Johnson") alleging, inter alia, a cover-up of child sexual abuse at KISD. He maintains that Johnson, who was formerly the Superintendent of the Scurry-Rosser Independent School District ("SRISD"), and former defendant Bruce Wood ("Wood"), the KISD Superintendent, covered up instances of child abuse that they were required by law to report. Hoskins maintains that Johnson was involved in covering up sexual offenses during his tenure at SRISD, that former SRISD Superintendent Steve Nash will be able to confirm that Johnson lied during his deposition, and that James Moeller, the current president of the SRISD school board, and perhaps other SRISD board members and current or former employees, will be able to establish Johnson's (and Wood's) habit of failing to report child abuse. He contends he is entitled to discovery to determine whether this is a pattern.
Hoskins originally sued other defendants who have since been dismissed.
In a May 30, 2003 order, the magistrate judge directed Hoskins not to initiate any further discovery from SRISD without first obtaining leave of court. Hoskins filed a motion for leave to take depositions, which defendants and SRISD opposed. The magistrate judge denied the motion. He found that Hoskins had not provided any substance to the circumstances that occurred in 1994, and that the discovery he sought appeared to be nothing more than a fishing expedition. Citing a passage from his May 30, 2003 order, he found to be meritless Hoskins' contention that what Johnson did in 1994 may constitute admissible evidence under Fed.R.Evid. 406 as evidence of a practice or habit relevant to his actions in relation to Hoskins at KISD. The magistrate judge concluded that "[a]ny incident which might have occurred in 1994 while Johnson was employed by [SRISD] cannot constitute admissible evidence under Federal Rule of Evidence 406." Mag. Apr. 5, 2004 Order at 2. Hoskins appeals.
Defendants and SRISD request that the court award them their attorney's fees incurred in defending Hoskins' appeal. This court will not award fees incurred on appeal except in circumstances not presented here. These requests are denied.
II
The standard of review for a decision of a magistrate judge in a nondispositive matter is governed by Fed.R.Civ.P. 72(a), which provides that the court "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Id."The `clearly erroneous' standard applies to the factual components of the magistrate judge's decision." Lahr v. Fulbright Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (Fitzwater, J.) (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (Fitzwater, J.)). "[T]he district court may not disturb a factual finding of the magistrate judge `unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Smith, 154 F.R.D. at 665; RTC v. Sands, 151 F.R.D. 616, 618 (N.D. Tex. 1993) (Fitzwater, J.) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985))). "If a magistrate judge's `account of the evidence is plausible in light of the record viewed in its entirety,' a district judge may not reverse it." Id. (quoting Smith, 154 F.R.D. at 665; RTC v. Sands, 151 F.R.D. at 618).
The legal conclusions of the magistrate judge are reviewable de novo, and the district judge reverses if the magistrate judge erred in some respect in his legal conclusions. Id.
"[T]he abuse of discretion standard governs review of `that vast area of . . . choice that remains to the [magistrate judge] who has properly applied the law to fact findings that are not clearly erroneous.'" Id. (quoting Smith, 154 F.R.D. at 665; In re REPH Acquisition Co., 134 B.R. 194, 202-03 (N.D. Tex. 1991) (Fitzwater, J.)).
III A
The court begins by noting that Hoskins has not addressed the applicable standards of review, which requires that the court first determine the yardstick by which it will evaluate the magistrate judge's order. The court recently encountered a similar problem in another appeal, Librado v. M.S. Carriers, Inc., 2004 WL 583602 (N.D. Tex. Mar. 23, 2004) (Fitzwater, J.). Although the court's opinion in Librado was filed after Hoskins initiated the instant appeal, the court's observations bear repeating here:
MSC has made this court's review of the magistrate judge's order difficult by waiting until its reply brief to attempt to specify the applicable standard of review and to state its reasons for maintaining under that standard that the ruling is reversible. Except for citing Rule 72 to establish that its appeal is timely, MSC does not discuss the standard of review until its reply brief. And it is not until its reply brief that MSC specifically engages controlling aspects of the magistrate judge's reasoning. In the past, after addressing several appeals in which the objecting parties had confused the standards of review, this court found it necessary to reemphasize the distinctions among those standards. In the present case, the court thinks it necessary to reemphasize the importance of citing the standard of review and arguing cogently under that standard why the magistrate judge has committed reversible error. When a party appeals a magistrate judge's order, he must demonstrate how the order is reversible under the applicable standard of review — de novo for error of law, clear error for fact findings, or abuse of discretion for discretionary matters. This means that, at a minimum, the party must identify the ruling being challenged, specify the standard of review, and explain why the decision in question is reversible under that standard.Librado, 2004 WL 583602, at *4 (emphasis added) (citations and internal quotation marks omitted). Hoskins has not "specif[ied] the standard of review, and explain[ed] why the decision in question is reversible under that standard." Id.
From reading Hoskins' brief, he appears to be relying on a claim of legal error: that the magistrate judge erred in his legal conclusion that what Hoskins is seeking via the requested discovery is not evidence of habit within the scope of Rule 406 and thus not discoverable. See P. Br. at 3-4 ("The Order objected to places Plaintiff in the untenable position of having to prove habit, while at the same time, not allowing Plaintiff to discover it." (emphasis omitted)). The court thus reviews the order de novo for legal error.
B
Rule 406 states:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
"Rule 406 allows the introduction of evidence of the habit of a person for the purpose of proving that the person acted in conformity with his habit on a particular occasion." Reyes v. Mo. Pac. R.R. Co., 589 F.2d 791, 794 (5th Cir. 1979) (footnote omitted). There is no precise formula for determining when behavior becomes so consistent as to rise to the level of habit, but "`adequacy of sampling and uniformity of response' are controlling considerations." Id. at 795 (quoting Rule 406 advisory committee's note). "To obtain a Rule 406 inference of the routine practice of a business, a plaintiff must show a sufficient number of specific instances of conduct to support the inference." Mobil Exploration and Producing U.S., Inc. v. Cajun Constr. Servs., Inc., 45 F.3d 96, 99 (5th Cir. 1995) (citing Reyes, 589 F.2d at 795). "Evidence of the defendant's actions on only a few occasions or only in relation to the plaintiff are not enough; the plaintiff must show regularity over substantially all occasions or with substantially all other parties[.]" Id. at 99-100 (footnote omitted).
Under Rule 406 "routine practice" is the business analog to evidence of a person's "habit."
In denying Hoskins' motion, the magistrate judge relied on this reasoning from his May 30, 2003 order:
[I]t is difficult in the extreme to see how matters which occurred in another school district seven or eight years prior to Plaintiff's employment by the Kaufman I.S.D. could possibly be admissible or lead to the discovery of admissible evidence under the claims asserted in Plaintiff's complaint.
Mag. Apr. 5, 2004 Order at 2 (quoting Mag. May 30, 2003 Order at 3). Hoskins cites Reyes as pointing out the "highly probative" and "superior character" of habit evidence. P. Br. at 4. But he does not assert that Johnson (or Wood) covered-up sexual abuse claims with "regularity over substantially all occasions or with substantially all other parties with whom [he] has had similar . . . transactions," see Mobil Exploration, 45 F.3d at 100, or that the discovery he seeks could satisfy this predicate for establishing the habit of a person for the purpose of proving that he acted in conformity with his habit on a particular occasion.
In Reyes the plaintiff sought to exclude at trial evidence of four prior misdemeanor convictions for public intoxication over a three and one-half year period. This proof was proffered to establish that the plaintiff was drunk on the evening that a train hit him. See Reyes, 589 F.2d at 792-93. The Fifth Circuit first held that the evidence could not be introduced under Rule 404 as character evidence. Id. at 793-94. It then ruled the evidence inadmissible under Rule 406, concluding that
the probative force of habit evidence to prove intoxication on a given occasion depends on the degree of regularity of the practice and its coincidence with the occasion. We do not undertake here to prescribe the precise quantum of proof necessary to transform a general disposition for excessive drinking into a habit of intemperance; we simply find that four prior convictions for public intoxication spanning a three and one-half year period are of insufficient regularity to rise to the level of habit evidence. Consequently, we hold the evidence to be inadmissible under Rule 406 as well.Id. at 795 (footnote, citation, and internal quotation marks omitted). The panel also cited examples of habits from a leading treatise on evidence as acts that are "semi-automatic," such as "going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving." Id. at 794 (quoting McCormick on Evidence § 195, at 462-63 (2d ed. 1972)).
Although the instant case is factually distinct, the same reasoning applies. If convictions for sporadic instances of public intoxication were not admissible evidence in Reyes to show a habit of excessive drinking, accusations of sporadic instances — possibly limited to a single one in 1994 — of covering-up sexual abuse over a longer period of time are inadmissible to prove a habit of covering-up abuse allegations, and thus are not discoverable. Moreover, a cover-up of abuse allegations does not appear to be the type of nonvolitional, habitual activity described by the Fifth Circuit in Reyes. See also Weil v. Seltzer, 873 F.2d 1453, 1461 (D.C. Cir. 1989) (holding that evidence of physician's treatment of five former patients was not of nonvolitional, habitual type that ensured its probative value).
Accordingly, Hoskins has failed to show that the magistrate judge erred as a matter of law in concluding that the evidence he seeks is neither admissible nor could it lead to the discovery of admissible evidence.
In his reply brief, Hoskins asks the court to consider evidence submitted in his response to defendants' motion for summary judgment, and he purports to incorporate it by reference. See P. Rep. Br. at 2. When this court reviews a decision of the magistrate judge in which he is authorized to make a final determination, it does so as an appeal, and it is confined to the record developed before the magistrate judge. The court therefore declines this request.
* * *
The magistrate judge did not err as a matter of law in denying Hoskins' motion for leave to take depositions. Accordingly, his April 5, 2004 order isAFFIRMED.