United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Mountaineer Gas Company's Objection
to Magistrate Judge Order [ECF No. 329]. The plaintiff filed
a response [ECF No. 331], as did the third party defendants
Engel Welding Inc., MIRC Construction Services, LLC [ECF No.
330], and CIMCO, Inc. [ECF No. 337]. The matter is ripe for
adjudication. For the reasons stated herein, the
defendant's Objection is OVERRULED.
claims at issue in this case arise from a boiler explosion
that occurred at St. Mary's Medical Center (“St.
Mary's”). Order 2 [ECF No. 328]. The plaintiff,
Travelers Property Casualty Company of America
(“Travelers”), brought this lawsuit on behalf of
its insured, St. Mary's, against Mountaineer Gas Company
(“Mountaineer”), Combustion Services &
Equipment Co. (“CS&E”), Hess Corporation,
Hess Energy Marketing, LLC, and Direct Energy Marketing, LLC.
Compl. 1 [ECF No. 1]. Mountaineer brought a third party
action against CIMCO, Inc. (“CIMCO”), MIRC
Construction Services, LLC (“MIRC”), and Engel
Welding, Inc. (“Engel”). Answer, Cross-Cl. &
Third-Party Compl. of Mountaineer [ECF No. 21].
to Mountaineer, certain inspection and testing of the gas
supply system and the boiler components needed to take place
in order to gain information regarding the cause or causes of
the explosion. Order 2. “Mountaineer, on its own
initiative, sought inspection and testing of: (1) air flow of
the gas strainer removed from Mountaineer's piping system
following the explosion, and the screen removed from a
regulation valve on the piping for the exploded boiler (flow
testing); and (2) laboratory analysis of debris gathered from
various components of the natural gas piping system following
the explosion (debris analysis).” Id. at 3-4.
conducting the testing or analysis, Mountaineer provided
drafts of the proposed protocols to govern the work to the
other parties. Id. at 4. Several of the parties made
clarifications to the proposed protocols. Id. During
these email exchanges, Travelers stated, “there will be
a cost involved in shipping the evidence. . . . Is
Mountaineer willing to share in the cost of that
transport?” Id. Mountaineer responded,
“I would expect all the parties to share the costs
associated with inspection and testing. If anyone does not
agree to contribute to the costs of inspection and testing,
please let the group know.” Id. at 5. Only
Engel responded that it did “not agree to share the
costs associated with inspection and testing.”
Mountaineer filed a Notice of Flow Testing and Notice of
Debris Analysis with the Clerk of the Court stating the date,
time, and location of the testing and analysis. Id.
Both notices informed the parties that they were
“invited to attend and protect [their] interests as
they appear herein.” Id. Representatives for
Mountaineer, Travelers, Engel, and CS&E participated in
the testing and analysis. Id. The total cost of the
debris analysis and flow testing amounted to $39, 805.15.
October 3, 2016, counsel for Mountaineer emailed counsel for
all of the parties stating that “dividing the cost
between Mountaineer, Travelers, CS&E, CIMCO, and MIRC
comes out to $6, 634.19. Please send a check payable to
Mountaineer. . . .” Id. at 6. That same day,
CS&E, MIRC, CIMCO, and Travelers all individually
responded that they did not agree to split the costs and that
they would not pay the money Mountaineer was requesting.
November 28, 2016, Mountaineer filed a Motion for Protective
Order to Allocate Discovery Costs. Mot. Protective Order to
Allocate Disc. Costs (“Mountaineer's Mot.”)
[ECF No. 226]. The motion requested that the court enter
“a protective order requiring Travelers, CSE, Engel,
CIMCO, and MIRC to pay equal shares of the costs of the Flow
Testing and Debris Analysis.” Id. at 6. On
September 25, 2017, Magistrate Judge Dwane L. Tinsley entered
an order denying Mountaineer's motion [ECF No. 328]. On
October 10, 2017, Mountaineer timely filed its objection to
the magistrate judge's findings. Obj. to Mag. Judge Order
[ECF No. 329].
Review of Magistrate Judge's Order
for protective orders under Rule 26 are not dispositive
motions. Federal Rule of Civil Procedure Rule 72(a) governs
district courts' review of non-dispositive orders entered
by a magistrate judge. Under this rule,
[w]hen a pretrial matter not dispositive of a party's
claim or defense is referred to a magistrate judge to hear
and decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and file
objections to the order within 14 days after being served
with a copy. . . . The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.
Fed. R. Civ. P. 72(a). “‘Clearly erroneous'
and ‘contrary to law' are not synonyms. . .
.” HSBC Bank USA, Nat'l Ass'n v. Resh,
No. 3:12-cv-00668, 2017 ...