Aros v. Ryan et al

Filing 163

ORDER denying 123 Plaintiff's Motion to Strike. Signed by Magistrate Judge Lawrence O Anderson on 1/27/2014.(ALS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Armando R. Aros, III, Plaintiff, 10 11 vs. 12 Charles L. Ryan, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV-11-2565-PHX-SRB (LOA) ORDER 14 This matter is before the Court on Plaintiff’s “Motion to Strike; Alternatively, Reply to 15 Defendants’ Response to Plaintiff’s Motion for Review of Magistrate [Judge]’s Order.” (Doc. 16 123) Defendants have filed a Response to Plaintiff’s Motion to Strike. (Doc. 134) Plaintiff has 17 not filed a reply in support of the Motion to Strike and the time to do so has expired. See Local 18 Rules of Civil Procedure (“LRCiv”) 7.2(d) (providing that a reply, if filed, must be submitted 19 no later than seven days after service of the response). 20 On September 24, 2013, Plaintiff filed a Motion for Review of Magistrate [Judge]’s 21 Order Pursuant to Fed.R.Civ.P. 72(a) in which he objects to this Magistrate Judge’s denial of 22 his Motion to Complete Screening Order. (Docs. 103, 108) The Motion is pending before the 23 assigned District Judge. On October 11, 2013, Defendants filed a Response to Plaintiff’s 24 Motion. (Doc. 119) In the instant Motion to Strike, Plaintiff asks the Court to strike the 25 response because, according to Plaintiff, a response is not authorized under Fed.R.Civ.P. 72(a). 26 Federal Rule of Civil Procedure 72(a) provides: 27 28 Nondispositive Matters. When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file 1 2 written objections to the order with 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. 3 Plaintiff explains that Fed.R.Civ.P. 72(b), which governs findings and recommendations 4 by a magistrate judge on dispositive motions, expressly authorizes a party to respond to another 5 party’s objections to the proposed findings and recommendations. See Fed.R.Civ.P. 72(b)(2). 6 Plaintiff argues that because Rule 72(a) contains no express authorization to respond to 7 objections, Defendants’ response to Plaintiff’s objections to the order denying the motion to 8 clarify screening order should be stricken. 9 As Defendants argue in their Response to Plaintiff’s Motion to Strike, the same argument 10 Plaintiff raises here was rejected in a prior case in this district. In Charles M. Brewer, Ltd. 11 Restated Pension Plan v. CBIZ, Inc., 2010 WL 2367210, at *1 (D. Ariz. June 10, 2010), the 12 Court followed “the long-standing practice of allowing a party that prevailed before a magistrate 13 judge to respond to any objections filed by the opposing party.” In addition, the Court relied on 14 the Advisory Committee Note to Rule 72(a), which states “[i]t is also contemplated that a party 15 who is successful before the magistrate [judge] will be afforded an opportunity to respond to 16 objections raised to the magistrate[ ] [judge’s] ruling.” Id. 17 This Magistrate Judge concurs with the Court’s ruling in CBIZ, Inc., and will follow it 18 here. Plaintiff’s Motion to Strike will, therefore, be denied. 19 Accordingly, 20 IT IS ORDERED that Plaintiff’s Motion to Strike, doc. 123, is DENIED. 21 DATED this 27th day of January, 2014. 22 23 24 25 26 27 28 -2-

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