Barnett v. Luna

Filing 146

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND OBJECTION TO MAGISTRATES' ORDER DENYING DISCOVERY 141 , 142 - Signed by JUDGE SUSAN OKI MOLLWAY on 11/13/08. (emt, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII GREGORY P. BARNETT, #A4000428, ) ) ) Petitioner, ) ) vs. ) ) TODD THOMAS, ) ) ) Respondent. _____________________________ ) CIVIL NO. 07-00491 SOM-BMK ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND OBJECTION TO MAGISTRATE'S ORDER DENYING DISCOVERY

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND OBJECTION TO MAGISTRATE'S ORDER DENYING DISCOVERY On November 10, 2008, Barnett filed three documents including (1) a Motion for Relief from Judgment ("Motion"); (2) an Objection to Magistrate's Order Denying Discovery Filed October 14, 2008 ("Objection"); and (3) a Supplement to Objection to Magistrates F&R Filed September 30, 2008 ("Supplemental Objection to F&R"). For the following reasons, Barnett's Motion

and Objection are DENIED and the court will not consider Barnett's Supplemental Objection to F&R. In his Motion, Barnett requests relief from judgment on the basis that the court prematurely entered Judgement against him on October 17, 2008. On October 30, 2008, this court issued

an Order Adopting and Supplementing Findings and Recommendation wherein the court vacated the October 17, 2008, Judgment as premature. The court then considered Barnett's Objections and

denied his Petition.

(Doc. No. 129.)

Accordingly, Barnett's

Motion is DENIED as moot. In his Objection, Barnett argues that Magistrate Judge Barry M. Kurren erred when, on October 14, 2008, he denied Barnett's request to conduct discovery. Under 28 U.S.C.

§ 636(b)(1)(c), "[w]ithin ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court." Under Rule 6(d) of the Federal Rules of Civil Procedure,

"[w]hen a party may or must act within a specified time after service and service is made under rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). Barnett, therefore, had up to and including

November 3, 2008, to file an appeal of the October 14, 2008, Order. As noted, Barnett filed his Objection on November 10, Accordingly, Barnett's Objection is DENIED

2008, one week late. as untimely.

Finally, the court's denial of Barnett's Motion and Objection render the October 30, 2008, Judgment effective. court will not, therefore, consider Barnett's Supplemental Objection to F&R. The

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IT IS SO ORDERED. DATED: Honolulu, Hawaii, November 13, 2008.

/s/ Susan Oki Mollway Susan Oki Mollway United States District Judge

Barnett v. Thomas, Civ. No. 07-00491 SOM; ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND OBJECTION TO MAGISTRATE'S ORDER DENYING DISCOVERY; prose attorneys\Non Dispositive Orders\hmg\2008\Barnett 07-00491 SOM (dny 11.10.08 motions)

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