Marro v. CitiBank N.A., Inc.
Filing
33
MEMORANDUM OPINION re: 14 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 9 Order on Motion to Amend/Correct by Donald C. Marro, 15 MOTION for Reconsideration (Rule 72) re 9 Order on Motion to Amend/Correct by Donald C. Marro, 28 MOTION to Continue 10/26/12 Hearing Date for Defendant's Motion To Dismiss. (See Memorandum Opinion For Details) Signed by District Judge James C. Cacheris on 10/23/12. (nhall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
DONALD C. MARRO,
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Plaintiff,
v.
CITIBANK N.A.,
Defendant.
1:12cv932 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff pro se
Donald C. Marro’s “Rule 72 Objection to Magistrate Judge Order
and Motion for Reconsideration” (the “Rule 72 Objection”).
[Dkt. 14, 15.] 1
Also before the Court is Plaintiff’s Motion to
Continue 10/26/12 Hearing Date for Defendant’s Motion to Dismiss
(the “Motion to Continue”).
[Dkt. 28.]
For the following
reasons, the Court will deny Plaintiff’s Rule 72 Objection.
The
Court also will deny Plaintiff’s Motion to Continue.
I.
Background
On July 16, 2012, Plaintiff filed his Complaint in the
General District Court of Fauquier County, Virginia.
1.]
[Dkt. 1-
On August 21, 2012, Defendant removed the action to this
1
Docket entries 14 and 15 contain the same filing, re-docketed to reflect the
Rule 72 Objection and Motion for Reconsideration titling of Plaintiff’s
filing. Despite Plaintiff’s titling, based on the substance of the document,
the Court construes Plaintiff’s document as a single challenge to the
Magistrate Judge’s order under Federal Civil Procedure Rule 72.
1
Court.
[Dkt. 1.]
On August 28, 2012, Defendant filed a Motion
to Dismiss for Failure to State a Claim and Failure to Join a
Party under Rule 19 (the “Motion to Dismiss”), which included a
Roseboro notice.
in support.
[Dkt. 2.]
[Dkt. 3.]
Defendant also filed a memorandum
Defendant originally noticed its Motion
to Dismiss for hearing on October 5, 2012.
[Dkt. 5.]
On
September 10, 2012, Defendant filed an amended Notice of Hearing
Date, moving the hearing to October 19, 2012.
[Dkt. 8.]
The
next day, Defendant filed another amended Notice of Hearing
Date, moving the hearing to October 26, 2012.
[Dkt. 10.]
On
October 9, 2012, Defendant filed a final amended Notice of
Hearing Date, moving the hearing on its Motion to Dismiss to
November 2, 2012.
[Dkt. 25.]
On September 11, 2012, Plaintiff filed a “Notice of
Objection and Objection to Defendant’s Premature Motion to
Dismiss.”
[Dkt. 11.]
Defendant responded to this filing on
September 13, 2012 [Dkt. 12], and Plaintiff replied on September
18, 2012 [Dkt. 18.]
On September 5, 2012, Plaintiff filed a “Notice of
Intent to Petition for Remand.”
[Dkt. 4.]
On September 14,
2012, Plaintiff filed a “Motion to Remand, or In The Alternative
to Nonsuit” (the “Motion to Remand or Nonsuit”).
[Dkt. 13.]
Plaintiff also filed a declaration in support of his Motion to
Remand or Nonsuit on September 20, 2012 [Dkt. 20], and noticed
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the motion for hearing on November 2, 2012 [Dkt. 21].
Defendant
filed its opposition brief on September 27, 2012 [Dkt. 22], and
Plaintiff replied on October 5, 2012 [Dkt. 26].
On September 6, 2012, Plaintiff filed a “Notice of
Motion and Motion to Amend a Briefing Schedule” (the “Motion to
Amend Briefing Schedule”).
[Dkt. 7.]
On September 11, 2012,
Magistrate Judge Theresa C. Buchanan entered an Order denying
Plaintiff’s Motion to Amend Briefing Schedule.
[Dkt. 9.]
In
response, Plaintiff filed a “Rule 72 Objection to Magistrate
Judge Order and Motion for Reconsideration” (the “Rule 72
Objection”).
[Dkt. 14, 15.]
Defendant filed its opposition
brief on October 1, 2012 [Dkt. 24], and Plaintiff replied on
October 9, 2012 [Dkt. 27].
On October 10, 2012, Plaintiff filed a “Motion to
Continue 10/26/12 Hearing Date for Defendant’s Motion to
Dismiss” (the “Motion to Continue”).
responded on October 18, 2012.
II.
[Dkt. 28.]
Defendant
[Dkt. 31.]
Standard of Review
Pursuant to the Federal Magistrate's Act and Federal
Rule of Civil Procedure 72(a), a party may serve and file
written objections to a magistrate judge's order within fourteen
days after being served with a copy of the magistrate judge's
order.
28 U .S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
For
non-dispositive matters, a District Court will only overturn a
3
Magistrate Judge’s Order if the Order is “clearly erroneous or
contrary to law.”
Fed. R. Civ. P. 72(a); 28 U.S.C. §
636(b)(1)(A). A court's “finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Harman v.
Levin, 772 F.2d 1150, 1152 (4th Cir. 1985).
The leading
treatise on federal practice and procedure describes the
alteration of a magistrate's non-dispositive order as “extremely
difficult to justify.”
12 Charles Alan Wright, et al., Federal
Practice and Procedure § 3069 (2d ed.1997).
III.
A.
Analysis
Rule 72 Objection
The Court denies Plaintiff’s Rule 72 Objection because
it finds that Magistrate Judge Buchanan did not clearly error by
denying Plaintiff’s Motion to Amend Briefing Schedule.
Under
Local Rule 7(K), a pro se party may “file a response opposing
the motion . . . within twenty-one (21) days of the date on
which the dispositive or partially dispositive motion is filed.
In his Motion to Amend Briefing Schedule, Plaintiff requested
that the Court amend the briefing schedule for Defendant’s
Motion to Dismiss to “start the clock ticking after the Court
rules on an imminent remand motion (or the remand period ends).”
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(Pl. Mot. to Amend Briefing Schedule [Dkt. 7] at 1.)
That is,
Plaintiff sought to toll his 21 day period to respond to
Defendant’s Motion to Dismiss until after the Court ruled on his
motion to remand (which had yet to be filed at that time) or the
remand period ended.
In support of this amended timetable,
Plaintiff asserted that this Court did not have jurisdiction
until a remand motion was adjudicated.
(Id. at 2.)
Judge
Buchanan found that Plaintiff’s Motion to Amend Briefing
Schedule was “without merit” and denied the motion.
[Dkt. 9.]
In his Rule 72 Objection to Judge Buchanan’s Order,
Plaintiff states two objections: (1) he reiterates his assertion
that a court lacks jurisdiction until a motion for remand is
adjudicated; and (2) he objects to the “[a]bsence of specific
grounds” for Judge Buchanan’s Order.
14, 15] at 1.)
(Pl. Rule 72 Obj. [Dkt.
Plaintiff does not provide any arguments that
the Order was clearly erroneous or contrary to law, but instead
points again to the cases on which he relied in his Motion to
Amend Briefing Schedule as stating that a federal district court
does not have jurisdiction until a motion to remand is
adjudicated.
(Id. at 2.)
The Court finds that Judge Buchanan’s Order was not
clearly erroneous or contrary to the law.
To begin, the cases
on which Plaintiff relies do not stand for the proposition that
a court must stay or extend briefing deadlines while a motion to
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remand is pending.
(See id. at 2 (citing Bell v. Hood, 327 U.S.
678 (1946); Arrowsmith v. United Press Int’l, 320 F.2d 219 (2nd
Cir. 1963); In re Bear River Drainage District, 267 F.2d 849
(10th Cir. 1959); County of Nassau v. N.Y., 724 F. Supp. 2d 295
(E.D.N.Y. 2010); Fort v. Ralston Purina, 452 F. Supp. 241 (E.D.
Tenn. 1978); Holman v. Bd. of Educ., 388 F. Supp. 792 (E.D.
Mich. 1975).)
Although a court must address a motion to remand
before considering a dispositive motion in that case, see Kight
v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc.,
34 F. Supp. 2d 334, 337 (E.D. Va. 1999), it does not follow that
the court must stay or extend the ordinary briefing deadlines
for the dispositive motion in the meanwhile.
As a result,
Plaintiff was required to either comply with the procedural
rules governing briefing deadlines or meet the required showing
for an extension.
Plaintiff, however, failed to show good cause for his
requested extension.
According to Federal Rule of Civil
Procedure 6, “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time.”
Fed. R. Civ. P. 6(1).
Local Rule 7(I) notes, however, that
“[a]ny requests for an extension of time relating to motions
must be in writing and, in general, will be looked upon with
disfavor.”
As Plaintiff articulated no other reasons for an
extended motion to dismiss briefing schedule while his motion to
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remand was pending, the Court concludes that it was not clearly
erroneous for Judge Buchanan to find his Motion to Amend
Briefing Schedules was meritless.
The Court therefore denies
Plaintiff’s Rule 72 Objection.
B.
Motion to Continue
In his Motion to Continue, Plaintiff requests that the
hearing on Defendant’s Motion to Dismiss be continued from its
previously scheduled date of October 26, 2012.
2.]
[Dkt. 28 at 1-
Plaintiff argues that the hearing should be continued so
that the Court can address his Motion to Remand before
Defendant’s Motion to Dismiss (noticed for hearing on November
2, 2012), as well as continued pursuant his Motion to Amend a
Briefing Schedule.
[Id. at 1.]
Plaintiff also states that
November 2, 2012 “is by far the most efficacious timing” for him
due to certain health considerations.
[Id. at 2.]
Given Defendant’s voluntary amended Notice of Hearing
Date moving the hearing on its Motion to Dismiss from October 26
to November 2, 2012 [Dkt. 25], the Court finds that Plaintiff’s
Motion to Dismiss should be denied as moot.
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IV.
Conclusion
For the reasons stated above, the Court will deny
Plaintiff’s Rule 72 Objection and deny Plaintiff’s Motion to
Continue as moot.
An appropriate Order will issue.
October 23, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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