Florence v. Stanback
Decision Date | 23 March 2009 |
Docket Number | No. CV 07-8184 RSWL (FMO).,CV 07-8184 RSWL (FMO). |
Citation | 607 F.Supp.2d 1119 |
Parties | David FLORENCE, Plaintiff, v. E.R. STANBACK, et al., Defendants. |
Court | U.S. District Court — Central District of California |
David Florence, Represa, CA, pro se.
Mina K. Choi, CAAG Office of Attorney General, Los Angeles, CA, for Defendants.
The Court has reviewed and considered defendants' Motion for Reconsideration and concludes that oral argument is not necessary to resolve this motion. See Fed. R.Civ.P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir.2001, as amended Mar. 27, 2001).
On June 9, 2008, defendants filed a Motion to Dismiss Plaintiffs First Amended Complaint ("Motion to Dismiss"). On October 6, 2008, the Magistrate Judge denied the Motion to Dismiss without prejudice. (Court's Order of October 6, 2008, at 13). On February 23, 2009, more than four months after the Magistrate Judge denied defendants' Motion to Dismiss, defendants filed a Motion for Reconsideration, together with a Memorandum of Points and Authorities in Support of the Motion ("Motion").
Defendants contend that "the Magistrate Judge lacks jurisdiction to issue a dispositive order deciding Defendants' Motion to Dismiss." (Motion at 2) (capitalization and bold omitted). Defendants assert that they (Id. at 4) The Court finds defendants' arguments unpersuasive.
First, the Magistrate Judge did not issue a "final decision," let alone a dispositive order. Cf. Local Rule 72-3.3 ( ). Instead, defendants' Motion to Dismiss was denied without prejudice. (Court's Order of October 6, 2008, at 13). The Court's Order of October 6, 2008, denied, without prejudice, defendants' two primary arguments relating to whether plaintiffs action was barred by the statute of limitations and whether plaintiff stated a viable First Amendment claim. (See id. at 4-12). The Court's Order of October 6, 2008, did not dispose of any of defendants' defenses. Indeed, defendants were expressly given the option to re-assert those arguments in a motion for summary judgment. . Because the Motion to Dismiss was denied without prejudice to defendants' right to raise the same arguments and/or defenses in another motion, the Magistrate Judge's order did not exceed his jurisdiction.
Second, defendants' Motion emphasizes form over substance. Under defendants' approach, simply placing the name of one of the motions enumerated in 28 U.S.C. § 636(b)(1) would be enough to transform the motion into a dispositive matter. However, the Court's Order of October 6, 2008, was not a dispositive order, as it did not dispose of any claim or defense. Cf. Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1463 (10th Cir. 1988) () ; Segal v. L.C. Hohne Contractors, Inc., 303 F.Supp.2d 790, 793-94 (S.D.W.Va. 2004) () . Further, defendants' Motion does not explain why they waited more than four months to object to the Court's Order of October 6, 2008. If defendants genuinely objected to the Court's Order of October 6, 2008, they should not have waited more than four months to object to the Order. "This rule is particularly appropriate where, as here, the defect complained of could have been readily corrected had the matter been called to the [magistrate judge's] attention." United Steelworkers of America v. New Jersey Zinc Co., 828 F.2d 1001, 1008 (3d Cir.1987) (internal quotation marks and citation omitted). A litigant may not sleep on his rights and decide, well after the deadline to challenge the order in any way, to raise a belated challenge to a court order. See Cash v. State Farm Fire & Cas. Co., 125 F.Supp.2d 474, 477 (M.D.Ala.2000) ( ); United Steelworkers of America, 828 F.2d at 1008 (); cf. Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 1703, 155 L.Ed.2d 775 (2003) ().1
Finally, even assuming, as defendants contend, that the Magistrate Judge entered an order purporting to determine a dispositive matter, the Court has the authority to ignore the form of the decision and treat it as a Report and Recommendation ("R & R"). See Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1445-1446 (M.D.Fla.1989) ( ); Zises v. Dept. of Social Services, 112 F.R.D. 223, 227 (E.D.N.Y.1986) () ; Neal v. Miller, 542 F.Supp. 79, 81 (S.D.Ill.1982) (); cf. United States v. Rivera-Guerrero, 377 F.3d 1064, 1071 (9th Cir.2004) (); United States v. Weissberger, 951 F.2d 392, 398 (D.C.Cir.1991) ( ). As an initial matter, the deadline to challenge a magistrate judge's decision, irrespective of whether the decision is a dispositive one or a recommended disposition, is ten days. See Fed.R.Civ.P. 72(a) & (b). Thus, irrespective of whether the Court construes defendants' Motion as objections or as a motion for review, defendants' challenge is untimely. 14 Moore's Federal Practice § 72.10[3][a] at 72-42 (3d ed. 2008) (...
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