Opinion
No. C-97-04701-SC (EDL)
December 23, 1999
REPORT AND RECOMMENDATION RE: PLAINTIFFS' MOTIONS FOR RULE 37 SANCTIONS
I. INTRODUCTION
On November 12, 1999, Plaintiffs filed two virtually identical motions, a Motion For Rule 37 Sanctions Against Defendant Hammersmith ("Hammersmith") and a Motion For Rule 37 Sanctions Against Defendant Gilliland ("Gilliland") ("Sanction Motions"). Plaintiffs' Motions allege that as a result of Defendants' utter failure to respond to discovery in violation of this Court's orders, under Fed.R.Civ.Pro. 37, Plaintiffs are entitled to have this Court declare all the allegations in their complaint be deemed established for the purposes of the action or, alternatively, that Defendants be precluded from introducing evidence to support their affirmative defenses or to defend against Plaintiffs' claims.
Gilliland and Hammersmith were both served notice of the Sanction Motions by mail at the address that Gilliland provided to Plaintiffs counsel by voicemail on October 28, 1999. See Declaration of Pamela Davis, Esq. ("Davis Decl.") at Ex. L. On December 1, 1999, Plaintiffs sent a revised notice indicating that the hearing date had been moved to December 21, 1999, three days later. See Plaintiffs Revised Notice of Sanction Motions (last page for proof of service). Defendants filed no opposition papers nor did Defendants file a Statement of Nonopposition as required by L.R. 7-3(b).
On November 12, 1999, the Sanction Motions were mailed to 714 Germantown Parkway, Suite 5, PMB 323, Cordova, Tennessee, 38108. "PMB" stands for Postal Mail Box.
On December 6, 1999, Judge Conti's courtroom deputy called Gilliland to advise him that the Pretrial Conference previously set for December 17, 1999 would be rescheduled to January 7, 1999. During that telephone call, Gilliland advised that he had received Plaintiffs' notice that the Sanction Motions would be heard on December 21, 1999 before Magistrate Judge Laporte. See Docket No. 160.
Defendants' opposition was due on November 29, 1999, twenty-one days before the December 17, 1999 hearing date. See L.R. 7-3(a). However, after the hearing was re-noticed for December 21, 1999, Defendants opposition would have been timely on December 1, 1999.
On December 21, 1999, this Court conducted a hearing on Plaintiffs' Sanction Motions. Plaintiffs appeared through counsel. Neither Hammersmith nor Gilliland appeared. At the hearing, the Court learned from Plaintiffs' counsel that Gilliland purportedly sent a letter dated December 16, 1999 by regular mail to the Court indicating that he was available to attend the hearing by telephone. The Court had not received such a letter. Assuming such a letter was sent, it was untimely.
Hammersmith and Gilliland also failed to appear at their last scheduled court date, August 30, 1999, for the Pretrial Conference before Judge Conti.
II. FACTUAL BACKGROUND A. Defendants' Pattern of Willful Discovery Violations
More than 19 months ago, on March 19, 1998, Plaintiffs propounded 91 document requests (First Set of Requests) on Defendants. See Davis Decl. at ¶ 4 and Ex. A. Initially, Defendants agreed to produce relevant, non-privileged documents responsive to eighty of the requests and only refused to produce documents responsive to the remaining eleven requests. See July 6, 1999 Report and Recommendation Re: Attorneys' Fees And Costs ("July 6, 1999 Report and Recommendation") at 33:4-5. On July 10, 1998, Plaintiffs served five separate sets of interrogatories jointly on all Defendants. Id. at 34:19-22 and Ex. B. On August 10, 1998, Defendants objected. Id. at 21-26.
On September 25, 1998, Plaintiffs filed a motion to compel (1) the production of documents from the First Set of Request, (2) responses to the interrogatories propounded by Plaintiff Papagni only, and (3) the deposition appearance of Gilliland individually and on behalf of Hammersmith ("Motion To Compel"). Id. at 35:23-37:17; see also Davis Decl. at ¶ 8 and Docket No. 25.
This Court held that Plaintiffs waived their right to compel responses to the interrogatories that were propounded by the Plaintiffs, other than Plaintiff Papagni, since they only moved to compel responses to Plaintiff Papagni's interrogatories. See July 6, 1999 Report and Recommendation at 35:1-5.
Five months later, on February 17, 1999, Judge Conti referred "Plaintiffs' motion to compel and for sanctions and all further discovery matters" to a Magistrate Judge. See Docket No. 42. On April 6, 1999, Plaintiffs served their Second Set of Requests for production of documents and on May 6, 1999, Defendants objected. See Davis Decl. at ¶ 9 and Ex. C.
A referral of all discovery motions "implicitly authorizes" the magistrate to impose sanctions for discovery motions. Maisonville v. F2 America, Inc., 902 F.2d 746 (9th Cir. 1990) (magistrate has jurisdiction to order sanctions without an express referral since the referral covered "pre-trial motions including discovery motions").
1. May 4, 1999 Hearing and Minute Order
On May 4, 1999, this Court held a hearing on Plaintiffs Motion to Compel. Compare Docket No. 25 with Docket No. 41 ("amended" Motion to Compel). At the hearing, the Court ruled as follows:
(1) . . . [Defendants] shall produce within 4 weeks [by June 1, 1999] all documents not objected to in responses;
All other documents, counsel to meet and confer [regarding any relevance issues] and file briefs within 1 week [if the parties cannot reach agreement];
(2) Counsel to meet, confer either re-draft interrogatories or agree on responses to be provided. If not, the Court will compel Defendants to respond;
(3) David Gilliland's deposition to occur within one month after Plaintiffs receive documents requested from Defendants. Counsel to meet, confer agree on date.
[Emphasis added] See May 4, 1999 Minute Order (Docket No. 94). Neither Gilliland nor Hammersmith appealed the May 4, 1999 Order.
On May 10, 1999, the parties met and conferred regarding the Interrogatories. See Davis Decl. at ¶ 12. Defendants agreed to respond to Interrogatory Request Nos. 1-7 and 9 and so, presumably, a dispute remained only as to Interrogatory Request Nos. 10-15. Id.
Thereafter, on May 18, 1999, Hammersmith and Gilliland asserted a blanket Fifth Amendment privilege to the all of the documents requested in Plaintiffs' First and Second Requests for Documents and to the Interrogatories. Id. at ¶ 13. In fact, Defendants refused to respond to Interrogatory Request Nos. 1-7 and 9, as previously agreed. Id.
On May 19, 1999, Plaintiffs filed expedited motions to compel the production of the First and Second Request for documents and to compel interrogatory responses. Id. at ¶ 14; see also Docket Nos. 99-105.
Defendants opposed the motions. See Docket Nos. 106-7.
2. June 3, 1999 Hearing and Minute Order and June 8, 1999 Order
On June 3, 1999, this Court held a hearing on Plaintiffs' expedited motion to compel discovery. At the hearing, Gilliland and Hammersmith claimed a Fifth Amendment privilege as the basis for their non-compliance with their outstanding discovery obligations. The Court ordered Defendants to brief the applicability of their alleged Fifth Amendment privilege to the discovery sought by Plaintiffs. Neither Gilliland nor Hammersmith appealed the June 3, 1999 Order.
The Court also ruled that Defendants' objections to the Second Request Nos. 10-15 (as revised) for documents were overruled, except to the extent that Defendants were protected by a Fifth Amendment privilege. The Court ordered that Defendants answer Interrogatory Request Nos. 1-7 and No. 9 on or before June 25, 1999. See June 3, 1999 Minute Order (Docket No. 111). On June 30, 1999, Defendants responded to Interrogatory Request Nos. 1-7 and No. 9.
Following its oral ruling, on June 8, 1999, the Court entered an order that explicitly stayed its earlier May 4, 1999 Order to produce all documents responsive to Plaintiffs' eighty requests for documents until its ruling on Defendants' assertion of the Fifth Amendment. See Order Granting In Part Plaintiffs' Supplemental Motions To Compel and Expedite Motion To Compel ("June 8, 1999 Order") at ¶ 4; Docket No. 115.
Neither Gilliland nor Hammersmith appealed the June 8, 1999 Order. Defendants assertion of the Fifth Amendment effectively put on hold their discovery obligations.
3. July 6, 1999 Order
As outlined in great detail in this Court's July 6, 1999 Report and Recommendation, Plaintiffs noticed the depositions of Gilliland and Hammersmith on three separate occasions. Defendants refused to appear.
Thereafter, this Court held that Gilliland "shall appear for deposition in the United States. The parties shall meet and confer regarding the specific place of the depositions, whether in this district, in Memphis or elsewhere in the United States. The deposition shall take place within one month after the documents are produced." See July 6, 1999 Report and Recommendation (Docket No. 122) at 37:14-18. Neither Gilliland nor Hammersmith appealed the Order Regarding Plaintiffs' Motion To Compel Discovery that was contained in the July 6, 1999 Report and Recommendation. Id. at 32-40.
4. August 16, 1999 Order Re: Defendants' Assertion of The Fifth Amendment Privilege
More than four months ago, on August 16, 1999, this Court resolved the outstanding discovery issues in this case, all of which had rested on Gilliland's and Hammersmith's belated and blanket assertions of the Fifth Amendment. See Order Re: Defendants' Assertion of The Fifth Amendment Privilege ("August 16, 1999 Order") (Docket No. 137).
The Court found that since Defendants failed to raise any non-Fifth Amendment privilege to Plaintiffs' Documents Request Nos. 1, 77, 79-81, 86-89, and 91, any further objections would be barred. Therefore, production of these documents should have been forthcoming.
Any non-Fifth Amendment objections were to be briefed concurrently with the schedule set for the briefing on the Fifth Amendment. See June 8, 1999 Report and Recommendation at ¶ 5.
After the June 3, 1999 hearing, at the time when the briefing was due, Hammersmith withdrew its assertion of the Fifth Amendment privilege on the basis of the holding in Braswell v. U.S., 487 U.S. 99, 108 (1988) (corporations are not protected by the Fifth Amendment). Despite having known of the Braswall case at the June 3, 1999 hearing, since Plaintiffs had earlier served it with a motion to compel that cited Braswell, Hammersmith nonetheless had asserted its alleged Fifth Amendment privilege. See August 16, 1999 Order at 2:9-11. Defendant Hammersmith's meritless Fifth Amendment assertion severely delayed its obligations to produce discovery under the Court's earlier orders, dating as far back as May 4, 1999. The Court found that it was "sanctionable conduct for Defendants to have claimed this privilege before this Court as a basis for [its] non-compliance with its discovery obligations. . . ." Id. at 2:14-17. The Court sua sponte sanctioned Hammersmith $500.00 payable to the Clerk of the Court by September 15, 1999. Id. at 2:14-17. To date, that $500.00 remains unpaid.
The Court also expressed its frustration with Gilliland's repeated blanket assertions of the Fifth Amendment. The Court admonished that it had "lost its patience with Gilliland's blanket assertions of the Fifth Amendment" and cautioned that it will "not tolerate an assertion of the privilege where no entitlement exists." Id. at 3:4-9. The Court found that (1) Gilliland must produce all corporate documents, including Hammersmith records, within 14 days of the Order; (2) Gilliland shall meet and confer regarding the interrogatory responses where he refuses to respond and "offer an explanation" regarding his alleged entitlement to Fifth Amendment protection; (3) Gilliland shall meet and confer regarding the production of personal documents that he refuses to produce and "offer an explanation" regarding his alleged entitlement to Fifth Amendment protection. [emphasis added] Id. at 3-4. Gilliland was cautioned that he must claim the privilege, as to each question, with some minimal level of specificity. Id. Neither Gilliland nor Hammersmith appealed the August 16, 1999 Order.
Since this Court's August 16, 1999 Order lifting the stay on discovery, neither Hammersmith nor Gilliland has produced a shred of discovery; Gilliland has not met and conferred regarding any alleged entitlement to a Fifth Amendment privilege; and despite the plain language of the July 6, 1999 Report and Recommendation that contained the order that depositions "shall take place within one month after the documents are produced," no depositions have been scheduled. Defendants cannot circumvent their obligation to appear at depositions by failing to produce documents.
In fact, Plaintiffs claim that Defendants whereabouts have been unknown to them and it has been impossible to confer with them regarding their discovery delinquency. In a detailed chronology, Plaintiffs' counsel provided the Court with their efforts to trace Gilliland's whereabouts for the last several months. See Davis Decl. at ¶¶ 21-31 and Exs. D, F-M. Defendants are under a continuing duty to notify the Court and Plaintiffs of their current address. See L.R. 3-11 (party proceeding pro se must "promptly file and serve upon all opposing parties a Notice of Change of Address specifying the new address"). Defendants failure to provide a current address to the Court and opposing counsel could result in the striking of their answer. See L.R. 3-11(b). Despite Plaintiffs unreciprocated efforts to contact Defendants, no meet and confer regarding the depositions has occurred. This Court finds that Defendants' willful conduct has frustrated the spirit of the Court's orders.
Pursuant to L.R. 3-9(b), Hammermsith may not appear pro se.
5. Notice of The August 16, 1999 Order Re: Defendants' Assertion of The Fifth Amendment Privilege
At the very latest, Hammersmith should have begun to comply with its discovery obligations on June 21, 1999, after it withdrew its bogus Fifth Amendment assertion. See Docket No. 118 (submission withdrawing Fifth Amendment claim filed on June 21, 1999). Therefore, Hammersmith is, at the very least, six months delinquent in producing documents, responding to interrogatories, and appearing for a deposition.
The August 16, 1999 Order which triggered Gilliland's compliance with discovery was mailed to Defendants' former attorney, Robert K. Phillips of Phillips Spallas in San Francisco. Even assuming that Gilliland did not receive the August 16, 1999 Order from his former lawyer, which seems unlikely, on September 28, 1999, Plaintiffs' counsel sent additional copies to him at three addresses believed to be used by Gilliland. Id. at ¶ 25 and at Ex. H. In fact, one of those addresses was the same address that appeared at the top of the faxed letter that Gilliland sent to Judge Conti on August 27, 1999. Id. at ¶ 23 and at Ex. F. Id. at ¶¶ 23, 25 at Exs. F, H. On October 14, 1998, Gray, Cary also sent a copy of the August 16, 1999 Order to Gilliland's attorney in the Texas matter, Mr. Betz. Id. at ¶ 27 and at Ex. H. Mr. Betz claimed that he, too, did not have a current address for Gilliland, but paged him with a contact number at Plaintiffs' counsel. Id. at ¶¶ 28, 29 at Ex. K. On October 28, 1999, Gilliland finally provided Plaintiffs counsel his current address by voicemail message and, on the same day, Plaintiffs' counsel sent him by federal express a copy of the August 16, 1999 Order with an enclosure letter. Id. at ¶¶ 29, 30 and at Ex. M. Plaintiffs' October 28, 1999 letter also explained that Plaintiffs would be filing evidentiary sanctions against him for failure to comply with this Court's discovery orders. Even if Defendants did not get the August 16, 1999 Order until October 29, 1999, by the time of the hearing, almost two months have passed since Gilliland had notice that he was in violation of the August 16, 1999 Order and that case-dispositive sanctions were being sought by Plaintiffs. Both Hammersmith and Gilliland have had more than enough time, at a minimum, to initiate compliance with this Court's orders.
On July 30, 1999, Judge Conti granted Robert K. Phillips' motion to withdraw as attorney of record for Gilliland and Hammersmith. See Docket No. 134 (July 30, 1999 Minute Order) and 136 (Order).
Gilliland was not present at the hearing. Judge Conti ordered Phillips to notify Gilliland of the withdrawal by letter. Id. As of July 30, 1999, Gilliland and Hammersmith were without counsel.
Plaintiff claims that although Gilliland had not returned their counsel's calls, his faxed letter on August 27, 1999 to Judge Conti indicates that he received their messages ("I was informed yesterday that the hearing in this case was moved from August 27, 1999 to August 30, 1999"). Davis Decl. at ¶ 23 and at Ex. F. While significant, this fact really only proves that Plaintiffs' telephone messages back in August reached him, not that the August 16, 1999 Order mailed to his attorney in California reached him. Plaintiffs' counsel claims that in the messages they also requested a meet and confer regarding outstanding discovery obligations. Id. at Ex. H.
III. LEGAL ANALYSIS
Federal Rule of Civil Procedure 37(b)(2) authorizes sanctions against a party who "fails to obey an order to provide or permit discovery." Such sanctions may include:
(1) "[a]n order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order" (see 37(b)(2)(A));
(2) "[a]n order refusing to allow the disobedient party to support or oppose designate claims or defenses" (see 37(b)(2)(B));
(3)"[a]n order . . . dismissing the action or proceeding or any party thereof, or rendering a judgment by default against the disobedient party" (see 37(b)(2)(B)).
A dismissal or an order that Plaintiff's allegations be taken as established under Rule 37 is reviewed for abuse of discretion. Valley Engineers v. Electric Engineering Co., 158 F.3d 1051 (9th Cir. 1998); U.S. v. Kahaluu Const., 857 F.2d 600, 602 at n. 4 (9th Cir. 1988). The district court's factual findings are reviewed for clear error. Id. "Absent a definite and firm conviction that the district court made a clear error in judgment, this court will not overturn a Rule 37 sanction." Adriana International Corp. v. Thoeren, 913 F.2d 1406, 1408 (9th Cir. 1990); Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1998).
The sanctions of taking the allegations in the complaint as established (see 37(b)(2)(A)) and precluding evidence so that the non-complying party cannot support its defenses or oppose plaintiff's claims (see 37 (b)(2)(B)) are comparable to an entry of default or dismissal since "they represent the most severe penalty that can be imposed." See U.S. v. Kahaluu Const, 857 F.2d at 603. Therefore, the court must engage in the same analysis in determining whether to impose these punitive measures. Id. Entry of default or orders taking the plaintiff's allegations as established are only authorized in "extreme circumstances" where the violation(s) are "due to willfulness, bad faith, or fault of that party." Id.
In ruling on Plaintiffs' Motions, the Court must weigh the following five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Stars' Desert Inn Hotel Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir 1997) (affirming default judgment under Rule 37 for failure to comply with court order).
Where a court order is violated, as is the case here, the first two factors support sanctions. Valley Engineers., 158 F.3d at 1056. The fourth factor always militates against case-dispositive sanctions; however, where a party abjectly refuses to cooperate in the litigation, the fourth factor is given little weight, if any. Hyde Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994). Therefore, although factor four cuts against case-dispositive sanctions, it is to be given little weight here since the history of these proceedings reflect a virtually total refusal by Defendants to comply with discovery obligations and orders.
The third and fifth factors are "decisive." Valley Engineers, 158 F.3d at 1056; Wanderer, 910 F.2d at 656. As to the third factor, repeated failure to comply with court orders constitutes adequate prejudice to the moving party so as to justify the imposition of terminating sanctions. Id. This factor looks to whether Defendants actions impair the ability of the Plaintiffs to go to trial or prejudices the outcome of the case. U.S. v. Kahaluu Const, 857 F.2d at 603.
"Factor five involves the consideration of three subparts: whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant part about the possibility of dismissal." Valley Engineers, 158 F.3d at 1056. Notwithstanding these subparts, "it is not always necessary for the court to impose less serious sanctions first, or to give any explicit warning." Id. The multi-factor test is not intended to be a "series of conditions precedent," or a "script for making what the district judge does appeal-proof." Valley Engineers, 158 F.3d at 1056. However, "[t]he significance of warning is that a sanction may be unfair if the party could not have realized it was in jeopardy of so severe a consequenceq . . . Rule 37 tells all lawyers and their clients that dismissal is possible if they violate discovery orders, and direct warnings . . . may make it clear that it is a real risk . . ." Id. An explicit warning is not required where a case involves "egregious circumstances." U.S. v. Kahaluu Const, 857 F.2d at 604 (citing Malone v. UPS, 833 F.2d 128, 132-33 (9th cir. 1987)).
In U.S. v. Kahaluu Const., the Court imposed sanctions under Rule 37 (b)(2)(A) and (B). There, defendant failed to produce documents relating to its counter-claim in violation of the court's order, filed its pretrial statement late, and failed to appear at its noticed deposition. 857 F.2d at 603. The district court invoked Rule 37, dismissing defendant's counterclaim and issuing an order that all the allegations in the complaint were to be taken as established and plaintiff's claim would not be subject to opposition. Id. The Ninth Circuit affirmed in part and reversed in part. Id. In examining defendant's violations, as cited by the district court, the Ninth Circuit found that the failure to provide discovery relating to the counterclaim warranted dismissal of the counter-claim. Id. at 601. However, since "due process considerations require that the sanction be `specifically related to the particular claim which was at issue in the order to provide discovery,'" the Rule 37 sanction had to relate to the counterclaim; therefore, taking the allegations in the complaint as established due to Defendants failure to appear at the deposition and for the defective filing of pretrial documents "exceeded the limits [of the court's] discretion." Id. at 601 (quoting Wyle v. R.J. Reynolds Inc., 709 F.2d 585, 591 (9th Cir. 1983). "Most important, the district judge failed both to warn defendants' counsel of the possibility of awarding judgment for . . . and to consider the feasibility of less drastic sanctions." Id. at 604.
Here, Defendants have repeatedly violated this Court's orders and the letter and spirit of discovery.
In fact, Defendants' conduct (i.e., failure to meet and confer with counsel; failure to obey this Court's orders to produce documents, respond to interrogatories, or be available for deposition; prolonged disingenuous assertion of Fifth Amendment privilege for corporate defendant where no privilege is available; failure to participate in the discovery process; complete absence from this litigation since July 30, 1999 without providing the Court and Plaintiffs with a current address) strikes at the heart of the judicial process. Defendants' betrayal of their obligations to the court and opposing counsel is shocking and extreme. Defendants' conduct shows not just recalcitrance and delay regarding the production of critical evidence, but demonstrates willful disobedience. The discovery cut-off date has passed with virtually no discovery produced from Defendants and absolutely none produced since July 30, 1999. Defendants have not made themselves available for deposition. See Davis Decl. at H (September 29, 1999 letter to Gilliland from Plaintiffs counsel). Defendants' discovery violations have threatened to frustrate the disposition of this case. Under the third factor, this Court finds that Defendants' misconduct has prejudiced Plaintiffs ability not only to obtain discovery, but also to proceed to trial on the merits of its claims. See Link v. Wabash, 30 U.S. 626, 630-31(1962) (affirming sua sponte dismissal of case for failure of party to appear at pretrial conference); Wanderer, 910 F.2d at 656. Plaintiffs are asking this Court to declare that all the allegations in Plaintiffs' complaint be taken as established for the purposes of the action or, alternatively, to preclude Defendants from introducing evidence to defend against Plaintiffs' claims or to support their affirmative defenses. Plaintiffs have tied each requested sanction to both Plaintiffs' specific discovery request and Defendants' corresponding failure to respond. Since each requested sanction relates specifically to the particular claim at issue, Plaintiffs' requested sanctions are appropriate in light of the holding in U.S. v. Kahaluu Const., 857 F.2d at 601.
Factor five, however, may warrant an explicit warning of the possibility of dismissal or the type of drastic sanctions sought by Plaintiffs, although the Court has already imposed a $500.00 sanction against Hammersmith that remains unpaid. The Court believes that lesser sanctions would be ineffective and takes this occasion explicitly to warn Defendants that if they do not immediately initiate compliance with their outstanding discovery obligations, this Court recommends that on January 7, 1999, the date of the Pretrial Conference, an order be issued precluding Gilliland and Hammersmith from introducing evidence to defend against Plaintiffs' claims or to support their affirmative defenses. Defendants are also forewarned that their inaction may result in an entry of judgment.
IV. CONCLUSION
For the foregoing reasons, it is hereby RECOMMENDED that if Defendants do not comply with their outstanding discovery obligations on or before January 7, 1999, that Plaintiffs' Motions for Sanctions under Rule 37 be GRANTED by precluding Defendant David Gilliland and Defendant Hammersmith Trust from introducing evidence to defend against Plaintiffs' claims or to support their affirmative defenses as provided for under Fed.R.Civ.Pro. 37(b)(2)(B). Defendants have also been warned that their failure to comply with their discovery obligations on or before January 7, 1999 may also result in the entry of a default judgment.
Any party may file objections to this report and recommendation with the District Judge within ten days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.Proc. 72(b); Civil Local Rule 72-3.