United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT COURT.
has filed a document which it characterizes as an
“objection” [227-1] to Magistrate Judge
Percy's ruling [223-1] on Hoch's Motion to Recognize
Facts Established by the Pleadings as Judicial Admissions.
Unfortunately, Yates' filing makes entirely new arguments
from those which were presented to Judge Percy. For example,
Yates' appeal is replete with authority, but it did not
cite a single case in its prior briefing before Judge Percy.
Moreover, while the overwhelming emphasis of Yates'
appeal is that Judge Percy improperly treated legal
conclusions as judicial admissions, there is scant mention of
this issue in the original briefing. There was, arguably,
some mention of this issue in portions of the
earlier briefing submitted by Yates,  but nothing close to the
extent to which it is asserted in the appeal.
now cites New Amsterdam Cas. Co. v. Waller, 323 F.2d
20, 24 (4th Cir. 1963) and Grandoe Corp. v. Gander
Mountain Co., 761 F.3d 876, 885 (8th Cir. 2014) for the
proposition that “legal conclusions are not subject to
the doctrine of judicial admissions, which applies only to
matters of fact.” Once again, however, it did not cite
these or any other cases before Judge Percy. One treatise
A party's failure to present timely arguments,
case law, or evidentiary materials to a magistrate
judge prior to the magistrate's ruling, thereby depriving
the magistrate of the opportunity to rectify any alleged
errors, waives that party's right to present those
arguments or materials to the district court on appeal from
the magistrate's nondispositive order.
14 Moore's Federal Practice § 72.11[a],
at 72-51 (3d ed. 2010)(emphasis added); see also CEF
Funding, L.L.C. v. Sher Garner Cahill Richter Klein &
Hilbert, L.L.C., 2011 WL 13202950, at *1 (E.D. La. Feb.
1, 2011), In re Toys R Us-Delaware, Inc. Fair and
Accurate Credit Transactions Act (FACTA)
Litig., 2010 WL 4942645 *3 n.1 (C.D. Cal. July 29,
2010); Grand River Enters. Six Nations, Ltd. v.
King, 2009 WL 1360686 *3 (S.D. N.Y. May 15, 2009).
question, Yates has failed to comply with this rule in its
briefing on this issue. This is a case which already has an
abundance of outstanding issues yet to be resolved, due
partly to the fact that both sides seem to have placed
greater emphasis on settlement negotiations than in drafting
their pleadings and preparing this case for trial. This court
relies upon its Magistrate Judges to assist in streamlining
the issues for its consideration at trial, but they, like any
other judges, are only able to make their rulings based upon
the arguments and authorities presented to them.
court notes parenthetically that, even considering the new
arguments and authorities presented by Yates in its appeal,
the vast majority of Judge Percy's rulings appear to
still be sound. Indeed, while Yates now appears to regret
some of the allegations it made in its original complaint,
which often portrayed AECOM as the principal “villain,
” it should not be permitted to obtain a large recovery
from that (former) defendant and then conveniently disavow
its earlier allegations. At the same time, this court
recognizes the potential force of placing some of these
allegations before the jury, and it does have some concerns
about providing a proper context for them. This court also
recognizes that there are valid concerns about whether at
least some of the allegations come too close to being legal
conclusions regarding the ultimate legal issues in this case.
At the same time, this appeal is not the procedurally proper
context in which to discuss these issues, since the filing
itself is procedurally improper.
light of the foregoing, this court will simply deny the
appeal as procedurally improper and reserve consideration
until trial of whether the overriding objective of ensuring a
fair trial should allow Yates the opportunity of presenting
arguments and authorities which it should have originally
made to Judge Percy. This court is disinclined to allow Yates
to re-argue all, or even most, of these issues at trial,
since there must be consequences for failing to raise
arguments at the proper time and place. At the same time,
this court is inclined to allow Yates to selectively re-argue
certain allegations which have a potential to confuse or
improperly influence the jury. This court directs that Hoch
consult with Yates before trial to ascertain in good faith to
what extent the parties themselves may resolve some of these
issues without the need of a ruling from this court.
therefore ordered that Yates' appeal [227-1] of the
Magistrate Judge's order is denied.
For example, its briefing relating to
Admission No. 13, Yates argued before Judge Percy that the
admission in question “was a legal proposition asserted
by PSI as an affirmative defense without any admission by
Yates.” Yates did not elaborate on this ...