O'Phelan et al v. Meek et al

Filing 95

ORDER ADOPTING MARCH 30, 2009 FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO REMAND AND AWARD DEFENDANT ATTORNEYS' FEES AND COSTS (DOC. NO. 90) AND DENYING PLAINTIFFS' OBJECTIONS THERETO FILED ON APRIL 16, 2009 (DOC. NO. 91 ) AND AFFIRMING THE MAGISTRATE JUDGE'S DENIAL OF: (1) PLAINTIFFS' OPPOSITION TO SUPPLEMENT TO FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO REMAND (DOC. NO. 55); (2) PLAINTIFFS' MOTION FOR RECONSIDERATION (DOC. NO. 60 );(3) PLAINTIFFS' SECOND MOTION FOR RECONSIDERATION (DOC. NO. 70); (4) PLAINTIFFS' AMENDED MOTION FOR HEARING MOTION FOR EVIDENTIARY HEARING (DOC. NO. 71); (5) PLAINTIFFS' FIRST MOTION FOR GERARD LEE LOY TO COMPLY WITH COURT RULES (DOC . NO. 78); (6) PLAINTIFFS' SECOND MOTION THAT EVIDENCE OF GERARD LEE LOY'S CREDIBILITY BE REVIEWED (DOC. NO. 81); (7) DEFENDANT'S SECOND MOTION FOR FEES AND COSTS (DOC. NO. 82); (8) PLAINTIFFS' FIRST MOTION TO STRIKE MOTION FOR ATTORNEYS' FEES (DOC. 83); AND (9) REPLY TO DEFENDANT'S MEMORANDUM AND MOTION TO RECONSIDER (DOC. NO. 89). Signed by District JUDGE HELEN GILLMOR on June 16, 2009. (bbb, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ELLEN J. O'PHELAN; DAN J. O'PHELAN, Plaintiffs, vs. JEFF MEEK; MARYLOU ASKREN, Defendants. _________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 08-00407 HG-KSC

ORDER ADOPTING MARCH 30, 2009 FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO REMAND AND AWARD DEFENDANT ATTORNEYS' FEES AND COSTS (DOC. NO. 90) AND DENYING PLAINTIFFS' OBJECTIONS THERETO FILED ON APRIL 16, 2009 (DOC. NO. 91) AND AFFIRMING THE MAGISTRATE JUDGE'S DENIAL OF: (1) (2) (3) (4) (5) (6) (7) (8) (9) PLAINTIFFS' OPPOSITION TO SUPPLEMENT TO FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO REMAND (DOC. NO. 55); PLAINTIFFS' MOTION FOR RECONSIDERATION (DOC. NO. 60); PLAINTIFFS' SECOND MOTION FOR RECONSIDERATION (DOC. NO. 70); PLAINTIFFS' AMENDED MOTION FOR HEARING MOTION FOR EVIDENTIARY HEARING (DOC. NO. 71); PLAINTIFFS' FIRST MOTION FOR GERARD LEE LOY TO COMPLY WITH COURT RULES (DOC. NO. 78); PLAINTIFFS' SECOND MOTION THAT EVIDENCE OF GERARD LEE LOY'S CREDIBILITY BE REVIEWED (DOC. NO. 81); DEFENDANT'S SECOND MOTION FOR FEES AND COSTS (DOC. NO. 82); PLAINTIFFS' FIRST MOTION TO STRIKE MOTION FOR ATTORNEYS' FEES (DOC. 83); AND REPLY TO DEFENDANT'S MEMORANDUM AND MOTION TO RECONSIDER (DOC. NO. 89)

On March 30, 2009, the Magistrate Judge entered a Findings and Recommendation that Defendant Marylou Askren's Motion to Remand to State Court and Award Defendant Aksren Attorneys' Fees and Costs be granted. (Doc. 90, "F&R".) On April 16, 2009, Plaintiffs filed

objections to the F&R.

(Doc. 91).

STANDARD OF REVIEW OF FINDINGS AND RECOMMENDATION A magistrate judge may be assigned to prepare findings and recommendations for a district judge on a pretrial matter that is dispositive of a claim. Fed. R. Civ. P. 72(b). If a party to the proceedings objects to the magistrate judge's findings or recommendations, the district court must review de novo those portions to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). The district court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, or recommit the matter to the magistrate judge. De novo review means the district court must consider the matter anew, as if it had not been heard before and as if no decision previously had been rendered. See Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992). The district court must arrive at its own independent conclusion about those portions to which objections are made, but a de novo hearing is not required. United States v. Remsing, 874 F.2d 614, 617-18 (9th Cir. 1989).

ANALYSIS The Court adopts the F&R to grant Defendant Askren's motion to remand to State Court. The Court denies the objections thereto filed by Plaintiff. The Court has reviewed the objections, which renew the same arguments raised before the Magistrate Judge in the motion to remand. The Court finds there is no issue that was not

thoroughly discussed and explained in the Magistrate Judge's F&R. The Court considers the Magistrate Judge's analysis to be accurate and instructive, and finds there is no purpose in repeating the analysis here.

STANDARD OF REVIEW OF APPEAL OF MAGISTRATE JUDGE'S ORDER Pursuant to Local Rule 74.1, any party may file an appeal from a magistrate judge's order determining a nondispositive matter within eleven days after issuance of the magistrate judge's order. The district judge shall consider the appeal and

shall set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. The district judge

may also reconsider sua sponte any matter determined by a magistrate judge under this rule. § 636(b)(1)(A). See Local Rule 74.1; 28 U.S.C.

ANALYSIS The Court has considered the Plaintiff's appeal of the Magistrate Judge's ruling on the nine filings by the plaintiff

and all related filings by Defendant Askren.

The Court finds no

basis to set aside any portion of the Magistrate Judge's order as clearly erroneous or contrary to law. The Magistrate Judge's

order correctly points out that all of the Plaintiff's filings fail to present a basis for reconsideration of the F&R or the Supplement. None of the filings present any new material facts

not previously available, intervening changes in law, manifest errors of law or fact, or any grounds for reconsideration enumerated in Federal Rule of Civil Procedure 60(b). of the Nine filings is DENIED. (Doc. 90) is AFFIRMED. The Appeal

The Magistrate Judge's Order

CONCLUSION For the foregoing reasons, 1. The Magistrate Judge's March 30, 2009, Findings and Recommendation to Grant Defendant Marylou Askren's Motion to Remand to State Court (Doc. 90) is ADOPTED; 2. Plaintiffs' objections filed on April 16, 2009 (Doc. 91) are DENIED; and 3. Plaintiffs' Appeal of the Magistrate Judge's Order denying the relief asked in the nine filings by Plaintiffs: (1) PLAINTIFFS' OPPOSITION TO SUPPLEMENT TO FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO REMAND (DOC. NO. 55); (2) (3) PLAINTIFFS' MOTION FOR RECONSIDERATION (DOC. NO. 60); PLAINTIFFS' SECOND MOTION FOR RECONSIDERATION (DOC. NO.

70); (4) PLAINTIFFS' AMENDED MOTION FOR HEARING MOTION FOR EVIDENTIARY HEARING (DOC. NO. 71); (5) PLAINTIFFS' FIRST MOTION FOR GERARD LEE LOY TO COMPLY WITH COURT RULES (DOC. NO. 78); (6) PLAINTIFFS' SECOND MOTION THAT EVIDENCE OF GERARD LEE LOY'S CREDIBILITY BE REVIEWED (DOC. NO. 81); (7) DEFENDANT'S SECOND MOTION FOR FEES AND COSTS (DOC. NO. 82); (8) PLAINTIFFS' FIRST MOTION TO STRIKE MOTION FOR ATTORNEYS' FEES (DOC. 83); AND (9) REPLY TO DEFENDANT'S MEMORANDUM AND MOTION TO RECONSIDER (DOC. NO. 89) is DENIED. AFFIRMED. IT IS SO ORDERED. DATED: June 16, 2009, Honolulu, Hawaii. The Magistrate Judge's Order (Doc. 90) is

/S/ Helen Gillmor Helen Gillmor United States District Judge