Abiakam v. Quest Corporation

Filing 45

ORDER granting Defendant's 43 motion to strike, overruling 41 Plaintiffs objection or appeal, and affirming the 33 Magistrate Judge's Order. By Judge Christine M. Arguello on 12/16/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-03086-CMA-BNB
GODWIN ABIAKAM,
Plaintiff,
v.
QWEST CORPORATION,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO STRIKE, OVERRULING
PLAINTIFF’S OBJECTION/APPEAL OF MAGISTRATE JUDGE’S DECISION, AND
AFFIRMING OCTOBER 17, 2011 MAGISTRATE JUDGE ORDER

This case was referred to United States Magistrate Judge Boyd N. Boland
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 13.) On October 17, 2011,
the Magistrate Judge issued an Order denying Plaintiff’s “Motion to Compel” (Doc.
# 25). (Doc. # 33.) On November 30, 2011, Plaintiff filed a “Supplemental Argument in
Support of Plaintiff’s Motion to Compel” (Doc. # 41), which the Magistrate Judge—and
this Court—interpreted as an objection to, or appeal of, the Magistrate Judge’s decision
(see id.). On December 5, 2011, Defendant filed a “Motion to Strike Plaintiff’s Objection
to Magistrate Judge Boland’s Order Denying His Motion to Compel as Untimely,”
asserting that Plaintiff filed his objection or appeal well after the 14-day period allowed
by Fed. R. Civ. P. 72(a). (Doc. # 43.)

The Court agrees with Defendant that Plaintiff’s objection or appeal (Doc. # 41)
was untimely and, therefore, grants Defendant’s motion to strike (Doc. # 43).
In the alternative, however, the Court also finds that Plaintiff’s objection or appeal
should be overruled. Because the Magistrate Judge’s Order (Doc. # 33) involved
nondispositive pretrial issues, Plaintiff needed to have demonstrated that the ruling was
“clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a). “The clearly erroneous
standard . . . requires that the reviewing court affirm unless it ‘on the entire evidence[,] is
left with the definite and firm conviction that a mistake has been committed.’” Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Having reviewed Plaintiff’s
objection, the Court finds that the Magistrate Judge’s Order was not clearly erroneous
or contrary to law.
Accordingly, Defendant’s motion to strike (Doc. # 43) is GRANTED, Plaintiff’s
objection or appeal (Doc. # 41) is OVERRULED, and the Magistrate Judge’s Order
(Doc. # 33) is AFFIRMED.
DATED: December

16

, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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