Quiroz et al v. U.S. Bank National Association et al

Filing 56

ORDER ON APPEAL OF 27 MAGISTRATE JUDGE DECISION. For the reasons set out in the attached Memorandum & Order, plaintiffs' objections to Judge Azrack's 9/13/2010 Order are overruled and the order denying the appointment of counsel without prejudice to renew after adjudication of defendants' motions to dismiss is affirmed. Defendants' counsel is directed to serve a copy of this Order on plaintiffs and file a Certificate of Service by ECF no later than 6/23/2011. Ordered by Judge Kiyo A. Matsumoto on 6/21/2011. (Iguina, Carmen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
RAMON QUIROZ, et al.,
Plaintiffs,
-against-

NOT FOR PUBLICATION
MEMORANDUM & ORDER
10-cv-2485(KAM)(JMA)

U.S. BANK NATIONAL ASSOCIATION, et
al.,
Defendants.
-----------------------------------X
MATSUMOTO, United States District Judge:
Before the court are objections to an order by
Magistrate Judge Azrack dated September 13, 2010 and filed on
September 16, 2010 (“9/13/10 Order”), denying plaintiffs‟ motion
for appointment of counsel without prejudice to renew after the
adjudication of defendants‟ motions to dismiss.
27, Order dated 9/13/10 (“9/13/10 Order”).)

(See ECF No.

For the reasons

that follow, the objections to the 9/13/10 Order are overruled
and the order by Judge Azrack is affirmed.
Judge Azrack initially issued the order denying
appointment of counsel as a Report and Recommendation.
9/13/10 Order.)

(See

On December 14, 2010, this court noted that

because the motion for appointment of counsel was not a
dispositive pretrial matter, a Report and Recommendation was not
required.

(See ECF No. 44, Order dated 12/14/10 (“12/14/10

Order”) at 1-2.)

The court determined that it would “treat the

September 13, 2010 Report and Recommendation as a Magistrate
Judge order subject to „clear error‟ review.”

(Id. (citing Fed.

R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A)).)

The court further

noted that plaintiffs may not have received notice of their
right to object to the determination by Judge Azrack to deny the
motion for appointment of counsel, and thus granted plaintiffs
seventeen (17) days to file any objections.

(Id. at 2.)

Plaintiffs were served with a copy of the December 14, 2010
Order by first class mail on December 15, 2010.
45, Affidavit of Service dated 12/15/10.)

(See ECF No.

On December 30, 2010,

plaintiffs filed objections to Judge Azrack‟s order denying
their motion for appointment of counsel.

(See ECF No. 46,

Objection to 9/13/10 Order.)

Plaintiffs filed amended

objections on March 4, 2011.

(See ECF No. 47, Amended Objection

to 9/13/10 Order.)
In reviewing objections to a magistrate judge order on
a non-dispositive matter, the district judge must “modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.”
§ 636(b)(1)(A).

Fed. R. Civ. P. 72(a); see also 28 U.S.C.
Because a motion for appointment of counsel is

a non-dispositive matter, see Bennett v. Goord, No. 06-3818-pr,
2008 WL 5083122, at *1 (2d Cir. Dec. 2, 2008) (applying Fed. R.
Civ. P. 72(a) standard to motion for appointment of counsel),
plaintiffs objections are subject only to “clear error” review.
2

Upon a careful review of Judge Azrack‟s thorough legal
analysis in the 9/13/10 Order and plaintiffs‟ objections and
amended objections, the court finds that that the 9/13/10 Order
was not clearly erroneous or contrary to law.

Accordingly,

plaintiffs‟ objections to the 9/13/10 Order are overruled and
the order denying the appointment of counsel without prejudice
to renew after adjudication of defendants‟ motions to dismiss is
affirmed.
Defendants‟ counsel is directed to serve a copy of
this Order on plaintiffs and file a Certificate of Service by
ECF no later than June 23, 2011.
SO ORDERED.
Dated:

June 21, 2011
Brooklyn, New York
/s/
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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