United States District Court, D. Minnesota
Smith, BERGER KAHN, for defendant/counter claimant.
Ndubisi Ucheomumu, LAW OFFICES OF ANDREW NDUBISI UCHEOMUMU.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
R. TUNHEIM CHIEF JUDGE
years ago, Plaintiff Jalin Realty Capital Advisors, LLC
(“Jalin”), represented by counsel Andrew Ndubisi
Ucheomumu, brought this trademark action against A Better
Wireless (“ABW”), which - after the Court
dismissed all of Jalin's claims with prejudice - assigned
its counterclaims to Defendant Hartford Casualty Insurance
Company (“Hartford”). Now before the Court are
Hartford's motion for attorney fees and Ucheomumu's
objections to the Magistrate Judge's Report and
Recommendation (“R&R”) on that motion.
Because those objections are as frivolous as was Jalin's
underlying action, the Court will overrule them, adopt the
R&R, and grant in part and deny in part Jalin's
motion for attorney fees and related costs and expenses.
2011, Jalin sued ABW. (Compl., Jan. 21, 2011, Docket No. 1.) In
light of egregious discovery violations, ABW moved for
sanctions against Jalin and Ucheomumu, a Maryland attorney
who represented Jalin pro hac vice and certified its
discovery responses. (Mot. for Sanctions, Dec. 6, 2011,
Docket No. 52.) The Magistrate Judge granted that motion,
barring Jalin from using any evidence other than what it had
disclosed in its first set of discovery responses - and
levying monetary sanctions against Ucheomumu personally
because he alone had signed the discovery responses at issue
and had failed to provide notice that he would not be
appearing at the hearing on the motion. (Order on Sanctions
at 11-13 & n.5, Feb. 22, 2012, Docket No. 60.)
2013, the Court dismissed all of Jalin's claims against
ABW with prejudice, describing them as “variously
unsupported, insufficiently pled, and entirely without merit,
” and criticized the conduct of counsel during
discovery, specifically noting that the Magistrate
Judge's “strong sanction” was appropriate.
(Order on Summ. J. at 2-3, 5, 31, Jan. 8, 2013, Docket No.
91.) Ucheomumu moved to withdraw, and the Magistrate Judge
granted his motion but noted that withdrawal would not
preclude a motion for attorney fees against him. (Order on
Mot. to Withdraw at 10-12, 14, Apr. 16, 2013, Docket No.
114.) ABW brought such a motion, (Mot. for Att'y Fees,
Dec. 20, 2013, Docket No. 134), which the Court stayed
pending ABW's claim for reimbursement against its
insurer, Hartford, (Order on Stay, Jan. 29, 2014, Docket No.
139). Settlement of the reimbursement claim led to
Hartford's substitution as Defendant and lifting of the
stay. (Order Adopting R&R, May 11, 2017, Docket No. 155.)
Court referred the motion for attorney fees to United States
Magistrate Judge Leo I. Brisbois, who ordered briefing, held
a hearing, and issued an R&R. (R&R at 1, 8-9, Feb. 9,
2018, Docket No. 186.) Hartford excluded local counsel from
its request, and now seeks $170, 476.77 jointly and severally
from Jalin pursuant to the Lanham Act and from Ucheomumu
pursuant to the Court's inherent authority to issue
sanctions. (Id. at 8-9, 23 n.11, 29 n.13.) Neither
Jalin (now unrepresented) nor Ucheomumu filed a memorandum of
opposition or attended the hearing. (Id. at 9.)
Although Ucheomumu's law license is indefinitely
suspended, he filed objections to the R&R. (Objs., Feb.
27, 2018, Docket No. 187.) Those objections are now before
STANDARD OF REVIEW
the filing of an R&R by a magistrate judge, “a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
objections should specify the portions of the magistrate
judge's [R&R] to which objections are made and
provide a basis for those objections.” Mayer v.
Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn.
Sept. 28, 2008). “The district judge must determine de
novo any part of the magistrate judge's disposition that
has been properly objected to.” Fed.R.Civ.P. 72(b)(3);
accord D. Minn. LR 72.2(b)(3).
a magistrate judge is hearing a matter pursuant to his or her
limited authority to make a recommended disposition, ‘a
claimant must present all his claims squarely to the
magistrate judge, that is, the first adversarial forum, to
preserve them for review.'” Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067
(8th Cir. 2012) (quoting Madol v. Dan Nelson
Auto. Grp., 372 F.3d 997, 1000 (8th Cir.
2004)). Because Ucheomumu did not timely file briefing in
opposition to Hartford's motion or appear at the motion
hearing, his right to object to the Magistrate Judge's
recommended disposition would ordinarily be waived. However,
in part because of Ucheomumu's representation that he was
unable to electronically file documents due to his suspended
law license, the Court will exercise its discretion to
consider his objections.