Entsminger v. Aranas et al.

Filing 247

ORDER - The Court construes Plaintiff's Notice (ECF No. 246 ) as a Motion for Reconsideration and grants the motion. Plaintiff's Objection (ECF No. 235 ) is overruled. Signed by Chief Judge Miranda M. Du on 8/26/2020. (Copies have been distributed pursuant to the NEF - AB)

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Case 3:16-cv-00555-MMD-WGC Document 247 Filed 08/26/20 Page 1 of 4 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 GREGORY WEST ENTSMINGER, Case No. 3:16-cv-00555-MMD-WGC ORDER 7 Plaintiff, v. 8 9 ROMEO ARANAS, et al., Defendants. 10 11 12 I. SUMMARY 13 Plaintiff Gregory West Entsminger’s filed an objection (the “Objection”) (ECF No. 14 235) to United States Magistrate Judge William G. Cobb’s order denying Plaintiff’s motion 15 to authorize the United States Marshal Service (“USMS”) to locate unserved defendants 16 (the “Motion”) (ECF No. 226 (denying ECF No. 224)). The Court overruled the Objection 17 as untimely. (ECF No. 242.) Before the Court is Plaintiff’s notice that the Objection was 18 timely filed (ECF No. 246), which the Court will construe as a motion for reconsideration. 19 For the following reasons, the Court grants the motion for reconsideration (ECF No. 246) 20 and overrules Plaintiff’s Objection (ECF No. 235). 1 21 II. MOTION FOR RECONSIDERATION 22 Plaintiff argues that he timely objected because he was granted an extension to file 23 the Objection by August 6, 2020 (ECF No. 232). (ECF No. 246 at 1.) Plaintiff in fact filed 24 the Objection on that date. (ECF No. 235.) Because the Objection is timely, the Court 25 grants the motion for reconsideration. The Court will now address the Objection. 26 27 28 1Although Defendants have not responded to the Objection, the Court is familiar with the issues raised and finds responses to be unnecessary. Case 3:16-cv-00555-MMD-WGC Document 247 Filed 08/26/20 Page 2 of 4 1 III. PLAINTIFF’S OBJECTION TO ECF NO. 226 2 A. Legal Standard 3 Magistrate judges are authorized to resolve pretrial matters subject to district court 4 review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); 5 Fed. R. Civ. P. 72(a) (a “district judge . . . must consider timely objections and modify or 6 set aside any part of the order that is clearly erroneous or is contrary to law”); see also LR 7 IB 3-1(a) (“A district judge may reconsider any pretrial matter referred to a magistrate judge 8 in a civil or criminal case under LB IB 1-3, when it has been shown the magistrate judge’s 9 order is clearly erroneous or contrary to law.”). A magistrate judge’s order is “clearly 10 erroneous” if the court has a “definite and firm conviction that a mistake has been 11 committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “An order 12 is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules 13 of procedure.” Jadwin v. County of Kern, 767 F. Supp. 2d 1069, 1110-11 (E.D. Cal. 2011) 14 (quoting DeFazio v. Wallis, 459 F. Supp. 2d 159, 163 (E.D.N.Y. 2006)). When reviewing 15 the order, however, the magistrate judge “is afforded broad discretion, which will be 16 overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. 17 Cal. 2007). The district judge “may not simply substitute its judgment” for that of the 18 magistrate judge. Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir. 19 1991) (citing United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 20 B. DISCUSSION 21 Plaintiff’s Motion requests an order directing the Nevada Deputy Attorney General 22 (“NVAG”) to facilitate the USMS’s effort “to locate new or current addresses of unserved 23 defendants” Jennifer Link, Alisha Fanyo, Mike Willden, Ilene Sanborne-Emmons, and 24 Kathi DelCarlo. (ECF No. 224 at 1.) Judge Cobb denied the Motion, finding that the NVAG 25 undertook an extensive investigation to attempt to identify and locate the five defendants. 26 (ECF No. 226 at 2-4, 7.) Judge Cobb also explained that Ninth Circuit caselaw places 27 responsibility on an in forma pauperis plaintiff—such as Plaintiff here—to provide the 28 USMS with the necessary information to effectuate service. (Id. at 5-7.) See Walker v. 2 Case 3:16-cv-00555-MMD-WGC Document 247 Filed 08/26/20 Page 3 of 4 1 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (holding that the district court did not abuse 2 its discretion in dismissing defendant for failure to effectuate service where plaintiff did not 3 prove he provided sufficient information to serve defendant or that he requested that 4 defendant be served). Judge Cobb further emphasized that “the Ninth Circuit has not held 5 that the U.S. Marshal must investigate a potential defendant’s current whereabouts.” (Id. 6 at 6 (emphasis in original).) 7 Plaintiff essentially objects that NVAG failed to provide the full names and 8 addresses of unserved defendants, and to make a reasonable investigation into their 9 whereabouts. (ECF No. 235 at 4-14.) Even if the Court were to agree with Plaintiff that 10 NVAG was not forthcoming with information or diligent in their investigation, that is not 11 sufficient to show that Judge Cobb abused his broad discretion in denying the Motion. 12 Moreover, Plaintiff has not pointed to any controlling legal authority that indicates Judge 13 Cobb acted contrary to law. In fact, Plaintiff has even said that the case law on this issue 14 is unclear (id. at 2) and that the Seven Circuit case he relied on in the Motion 2 is not 15 controlling here (id. at 12). Because the Court cannot find that Judge Cobb clearly erred in denying the Motion, 16 17 the Court overrules Plaintiff’s objection. 18 IV. CONCLUSION 19 The Court notes that the parties made several arguments and cited to several cases 20 not discussed above. The Court has reviewed these arguments and cases and determines 21 that they do not warrant discussion as they do not affect the outcome of the objection and 22 motion before the Court. It is therefore ordered that the Court construes Plaintiff’s notice (ECF No. 246) as 23 24 a motion for reconsideration and grants the motion. 25 /// 26 /// 27 28 2Williams v. Werlinger, 795 F.3d 759 (7th Cir. 2015). 3 Case 3:16-cv-00555-MMD-WGC Document 247 Filed 08/26/20 Page 4 of 4 1 It is furthered ordered that Plaintiff’s objection (ECF No. 235) is overruled. 2 3 DATED THIS 26th day of August 2020. 4 5 6 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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