Odigwe v. National Mentor Healthcare LLC et al

Filing 162

* ORDER - IT IS HEREBY ORDERED approving, incorporating, and adopting the Report and Recommendation of Magistrate Judge Bridget Bade. (Doc. 160 .) IT IS FURTHER ORDERED denying Plaintiffs Objection to Magistrate Judge's Report and Recommendati on. (Doc. 161 .) IT IS FURTHER ORDERED denying Plaintiff's motion to rescind consent for a Magistrate Judge to Preside over this case. (Doc. 159 .) IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order to the Ninth Circuit Court of Appeals. (See document for full details). Signed by Senior Judge Stephen M. McNamee on 5/1/14. (LAD) * Modified to correct Judge signing Order on 5/2/2014 (LAD).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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v.
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National Mentor Healthcare LLC, et al., )
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Defendants.
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Chuks Odigwe,

No. CV-11-2396-PHX-SMM (BSB)

ORDER

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This case is on appeal at the Ninth Circuit Court of Appeals. (See Ninth Circuit Court

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of Appeals Docket No. 13-17067.) Plaintiff is appealing judgment in favor of Defendants and

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terminating his complaint. (Docs. 148, 149.) Generally, the filing of a notice of appeal

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divests the district court of jurisdiction over the matters appealed. See Gould v. Mut. Life Ins.

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Co. of New York, 790 F.2d 769, 772 (9th Cir. 1986). However, an appeal from the merits

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does not foreclose an award of attorney’s fees by the district court. See Masalosalo by

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Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir. 1983).

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Subsequent to Magistrate Judge Mark Aspey’s final ruling and Plaintiff’s notice of

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appeal, Defendants moved for attorney’s fees and expenses. (Doc. 153.) Even though Judge

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Aspey recognized that recusal will result in a sixth judge being assigned to this matter, Judge

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Aspey recused himself from further proceedings when, without a factual basis, Plaintiff

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accused him of misconduct. (Docs. 157, 158.) Magistrate Judge Bridget Bade was assigned

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to handle the matter. (Doc. 158.) Plaintiff then moved to rescind his consent to magistrate

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judge jurisdiction. (Doc. 159.)
Pending before the Court is Judge Bade’s Report and Recommendation

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recommending that Plaintiff’s motion rescinding consent for a Magistrate Judge to preside

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over this case be denied. (Doc. 160.) Plaintiff objects to the Report and Recommendation.

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(Doc. 161.) After considering the Report and Recommendation and the arguments raised in

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Plaintiff’s Objection, the Court will deny Plaintiff’s objection and affirm Judge Bade’s

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Report and Recommendation.
STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court “shall

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make a de novo determination of those portions of the report . . . to which objection is made,”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see Thomas v. Arn, 474 U.S. 140,

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149-50 (1985); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). To the

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extent that no objection has been made, arguments to the contrary have been waived. Fed.

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R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within

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fourteen days of service of the Report and Recommendation).
DISCUSSION

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Plaintiff objects to Magistrate Judge Bade’s Report and Recommendation which

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recommended that Plaintiff’s motion rescinding consent for a Magistrate Judge to preside

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over this case be denied. (Doc. 161.) Plaintiff’s reasons for rescinding consent focus on his

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contention that Judge Aspey’s rulings were partial toward the Defendants. (Id.) Plaintiff

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also objected to Judge Voss’s handling of the merits of his complaint again along partiality

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grounds. (Id.)

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As previously noted, the merits of Plaintiff’s case will be reviewed and decided by the

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Ninth Circuit Court of Appeals. The only part of Plaintiff’s case that remains before Judge

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Bade is Defendants’ motion for attorney’s fees. Plaintiff seeks to rescind consent for

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Magistrate Judge Bade to rule on this motion. Judge Bade conducted a thorough review of

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the matter setting forth the legal standard for vacating consent requiring that Plaintiff

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establish extraordinary circumstances. See Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).

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Judge Bade found that Plaintiff’s dissatisfaction with the Magistrate Judge’s rulings did not
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constitute an extraordinary circumstance and therefore did not rescind his consent.

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Having reviewed the legal conclusions of the Report and Recommendation of the

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Magistrate Judge, and Plaintiff’s objections, the Court finds that the Magistrate Judge

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adequately addressed all of Plaintiff’s arguments. Therefore, the Court will approve,

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incorporate and adopt the Magistrate Judge’s Report and Recommendation.

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CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED approving, incorporating, and adopting the Report and

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Recommendation of Magistrate Judge Bridget Bade. (Doc. 160.)
IT IS FURTHER ORDERED denying Plaintiff’s Objection to Magistrate Judge’s
Report and Recommendation. (Doc. 161.)
IT IS FURTHER ORDERED denying Plaintiff’s motion to rescind consent for a
Magistrate Judge to Preside over this case. (Doc. 159.)
IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order
to the Ninth Circuit Court of Appeals.
DATED this 1st day of May, 2014.

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