Ohio Midland, Inc. v. Gordon Proctor
20-3720
| 6th Cir. | Jul 12, 2021Background
- The Bellaire Bridge (Ohio River) became subject to a U.S. Coast Guard demolition order after the bridge was rendered unusable; ownership changed hands several times and demolition was not completed.
- KDC Investments, LLC (KDC) ultimately became the plaintiff/owner and was repeatedly ordered to remove the bridge; the district court found KDC and its principal in contempt for failing to secure a bond and take steps to demolish the bridge.
- After prolonged litigation and delay, the district court appointed David Kopech as a master in 2017 to promote resolution and removal; Kopech performed work and submitted fee statements.
- In a June 23, 2020 Opinion and Order the district court: ordered KDC to demolish the bridge, approved Kopech’s fees, and allocated the master’s fee equally ($8,420 each) among KDC, Norfolk Southern, and the City of Benwood.
- Norfolk Southern appealed only the allocation of fees to it, arguing the master’s appointment was invalid and that the fee allocation failed to apply Rule 53 factors properly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of master appointment under Fed. R. Civ. P. 53 | KDC (and district court) treated Kopech as properly appointed; no timely objection was made below. | Norfolk Southern contends appointment was procedurally defective (no formal order, insufficient notice) and therefore invalid. | Waived: Norfolk Southern failed to object in district court and acquiesced to Kopech’s role, so may not challenge appointment on appeal. |
| Allocation of master’s fees under Fed. R. Civ. P. 53(g)(3) | KDC and district court approved the fee and split it evenly among parties as reasonable. | Norfolk Southern argues the court failed to consider/expressly apply the Rule 53 factors (nature/amount of controversy, parties’ means, relative responsibility). | Vacated in part and remanded: the court did not adequately explain consideration of Rule 53 factors when allocating fees; remand for further consideration. |
Key Cases Cited
- J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474 (6th Cir. 1993) (issues not presented to the district court generally cannot be raised for the first time on appeal)
- Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981) (objection to a Rule 53 reference must be made promptly or is waived)
- McGowan v. Avco Corp., 817 F.2d 105 (6th Cir. 1987) (delayed objection to a master’s appointment waives the challenge)
- Newton v. Consolidated Gas Co., 259 U.S. 101 (1922) (allocation decisions reviewed for abuse of discretion)
- Hart v. Cmty. School Bd., 383 F. Supp. 699 (E.D.N.Y. 1974) (district court allocation of master’s payment reviewed under abuse-of-discretion standard)