3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JOSEPH M. ANDERSON, Case No. 3:18-cv-00426-MMD-CLB
7 Plaintiff, ORDER v. 8 JAMES DZURENDA, et al., 9 Defendants. 10 11 I. SUMMARY 12 This is a civil rights case involving Plaintiff Joseph M. Anderson, who is in the 13 custody of the Nevada Department of Corrections. Before the Court are Plaintiff’s two 14 objections to United States Magistrate Judge Carla L. Baldwin’s order. First, Plaintiff 15 objects to Judge Baldwin’s minute order (the “Minute Order”) denying motion for leave to 16 submit a second amended complaint (“Motion to Amend”) (ECF No. 143 at 2 (denying 17 ECF No. 115)). (ECF No. 147.) Second, Plaintiff objects to Judge Baldwin’s report and 18 recommendation (the “R&R”) (ECF No. 144) recommending that Court deny Plaintiff’s 19 motion to correct the identification of Defendant Steve Ballantyne (the “Motion to Correct”) 20 (ECF No. 129), and that Defendant Steve Ballentine be dismissed for failure to properly 21 effectuate service of process. (ECF No. 146.) As discussed further below, the Court 22 overrules both of Plaintiff’s objections and adopts the R&R in full.1 23 /// 24 /// 25 /// 26
27 1The Court has also reviewed Defendants’ responses. (ECF Nos. 152, 155.) Plaintiff filed a reply in support of his objection to the R&R (ECF No. 154) without first 28 seeking leave of the Court. See LR IB 3-2 (“Replies will be allowed only with leave of court.”) The Court therefore strikes Plaintiff’s reply and will not address it in this order. 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 Judge Baldwin granted Plaintiff’s motion for an extension to file a second amended 22 complaint identifying Doe Defendants. (ECF No. 96 at 3.) But “Plaintiff [was not] permitted 23 to bring new claims.” (Id. at 3 n.1.) Thereafter in the Minute Order, Judge Baldwin denied 24 Plaintiff’s Motion to Amend (ECF No. 115) because Plaintiff “attempted to add additional 25 allegations against new defendants that were not previously identified as potential Doe 26 defendants.” (ECF No. 143 at 2.) 27 Plaintiff objects to the Minute Order because Plaintiff did not consent to Judge 28 Baldwin’s authority to decide his Motion to Amend and because Judge Baldwin failed to 2 Baldwin was addressing Plaintiff’s failure to comply with this Court’s order allowing limited 3 amendment, which is a pretrial issue that she may finally resolved. See Anderson v. 4 Woodcreek Venture Ltd., 351 F.3d 911, 917 (9th Cir. 2003) (citation omitted) (parties’ 5 consent is not required for magistrate judge jurisdiction over pretrial, non-dispositive 6 matters). 7 Plaintiff further argues that he did not add any new claims to his proposed second 8 amended complaint, yet he admits that he realleged a conspiracy claim (Count IV) that 9 the Court dismissed in a prior screening order. (ECF No. 147 at 6; see also ECF No. 22 10 at 8.) Contrary to Plaintiff’s assertion, the Court did not leave the conspiracy claim 11 “unresolved” (ECF No. 147 at 6)—the Court unambiguously dismissed that claim because 12 “Plaintiff only provide[d] conclusory allegations that Defendants . . . had a meeting of the 13 minds to interfere with Plaintiff’s rights” (ECF No. 22 at 8). Because Plaintiff exceeded the 14 scope of his leave to amend when he added his conspiracy claim, the Court overrules 15 Plaintiff’s objection and finds that Judge Baldwin correctly denied the Motion to Amend. 16 III. PLAINTIFF’S OBJECTION TO THE R&R (ECF NO. 146) 17 A. Background 18 Plaintiff filed this action on August 31, 2018. (ECF No. 1.) On July 5, 2019, a 19 Summons/USM-285 was returned unexecuted as to Steve Ballentine. (ECF No. 77.) 20 Almost a year later on August 16, 2019, Judge Baldwin denied Plaintiff’s motion to process 21 service on Steve Ballentine because Defendant “no longer resides at the address.” (ECF 22 No. 96 at 2.) But Judge Baldwin granted Plaintiff’s motion for an extension of time to 23 “provide a more detailed address for [Defendant Ballentine]” and to complete service. (Id.) 24 Judge Baldwin also informed Plaintiff that if he “is unable to provide a more detailed 25 address for [Defendant Ballentine] on or before [the discovery cutoff date of] November 26 18, 2019, [said Defendant] will be dismissed for failure to properly effectuate service of 27 process.” (Id.) Plaintiff failed to do so. (ECF No. 144 at 1.) 28 /// 2 and found that Steve Ballentine’s last name was spelled “Ballantyne” twice in a daily 3 medical sign in/out log. (ECF No. 146 at 6; see also ECF No. 129 at 1, 23, 25.) Plaintiff 4 requested an extension of time to conduct an online search of addresses under Steve 5 Ballantyne and to process service on him. (ECF No. 129 at 7.) 6 B. Discussion 7 This Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 9 timely objects to a magistrate judge's report and recommendation, then the Court is 10 required to “make a de novo determination of those portions of the [report and 11 recommendation] to which objection is made.” Id. Because of Plaintiff's objection to the 12 R&R, the Court has undertaken a de novo review of it, including the underlying briefs. The 13 Court finds good cause to adopt the R&R in full and overrules Plaintiff’s objection. 14 Judge Baldwin recommends that the Court deny Plaintiff’s Motion to Correct (ECF 15 No. 129) and that Defendant Steve Ballentine be dismissed for failure to properly 16 effectuate service of process. (ECF No.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JOSEPH M. ANDERSON, Case No. 3:18-cv-00426-MMD-CLB
7 Plaintiff, ORDER v. 8 JAMES DZURENDA, et al., 9 Defendants. 10 11 I. SUMMARY 12 This is a civil rights case involving Plaintiff Joseph M. Anderson, who is in the 13 custody of the Nevada Department of Corrections. Before the Court are Plaintiff’s two 14 objections to United States Magistrate Judge Carla L. Baldwin’s order. First, Plaintiff 15 objects to Judge Baldwin’s minute order (the “Minute Order”) denying motion for leave to 16 submit a second amended complaint (“Motion to Amend”) (ECF No. 143 at 2 (denying 17 ECF No. 115)). (ECF No. 147.) Second, Plaintiff objects to Judge Baldwin’s report and 18 recommendation (the “R&R”) (ECF No. 144) recommending that Court deny Plaintiff’s 19 motion to correct the identification of Defendant Steve Ballantyne (the “Motion to Correct”) 20 (ECF No. 129), and that Defendant Steve Ballentine be dismissed for failure to properly 21 effectuate service of process. (ECF No. 146.) As discussed further below, the Court 22 overrules both of Plaintiff’s objections and adopts the R&R in full.1 23 /// 24 /// 25 /// 26
27 1The Court has also reviewed Defendants’ responses. (ECF Nos. 152, 155.) Plaintiff filed a reply in support of his objection to the R&R (ECF No. 154) without first 28 seeking leave of the Court. See LR IB 3-2 (“Replies will be allowed only with leave of court.”) The Court therefore strikes Plaintiff’s reply and will not address it in this order. 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 Judge Baldwin granted Plaintiff’s motion for an extension to file a second amended 22 complaint identifying Doe Defendants. (ECF No. 96 at 3.) But “Plaintiff [was not] permitted 23 to bring new claims.” (Id. at 3 n.1.) Thereafter in the Minute Order, Judge Baldwin denied 24 Plaintiff’s Motion to Amend (ECF No. 115) because Plaintiff “attempted to add additional 25 allegations against new defendants that were not previously identified as potential Doe 26 defendants.” (ECF No. 143 at 2.) 27 Plaintiff objects to the Minute Order because Plaintiff did not consent to Judge 28 Baldwin’s authority to decide his Motion to Amend and because Judge Baldwin failed to 2 Baldwin was addressing Plaintiff’s failure to comply with this Court’s order allowing limited 3 amendment, which is a pretrial issue that she may finally resolved. See Anderson v. 4 Woodcreek Venture Ltd., 351 F.3d 911, 917 (9th Cir. 2003) (citation omitted) (parties’ 5 consent is not required for magistrate judge jurisdiction over pretrial, non-dispositive 6 matters). 7 Plaintiff further argues that he did not add any new claims to his proposed second 8 amended complaint, yet he admits that he realleged a conspiracy claim (Count IV) that 9 the Court dismissed in a prior screening order. (ECF No. 147 at 6; see also ECF No. 22 10 at 8.) Contrary to Plaintiff’s assertion, the Court did not leave the conspiracy claim 11 “unresolved” (ECF No. 147 at 6)—the Court unambiguously dismissed that claim because 12 “Plaintiff only provide[d] conclusory allegations that Defendants . . . had a meeting of the 13 minds to interfere with Plaintiff’s rights” (ECF No. 22 at 8). Because Plaintiff exceeded the 14 scope of his leave to amend when he added his conspiracy claim, the Court overrules 15 Plaintiff’s objection and finds that Judge Baldwin correctly denied the Motion to Amend. 16 III. PLAINTIFF’S OBJECTION TO THE R&R (ECF NO. 146) 17 A. Background 18 Plaintiff filed this action on August 31, 2018. (ECF No. 1.) On July 5, 2019, a 19 Summons/USM-285 was returned unexecuted as to Steve Ballentine. (ECF No. 77.) 20 Almost a year later on August 16, 2019, Judge Baldwin denied Plaintiff’s motion to process 21 service on Steve Ballentine because Defendant “no longer resides at the address.” (ECF 22 No. 96 at 2.) But Judge Baldwin granted Plaintiff’s motion for an extension of time to 23 “provide a more detailed address for [Defendant Ballentine]” and to complete service. (Id.) 24 Judge Baldwin also informed Plaintiff that if he “is unable to provide a more detailed 25 address for [Defendant Ballentine] on or before [the discovery cutoff date of] November 26 18, 2019, [said Defendant] will be dismissed for failure to properly effectuate service of 27 process.” (Id.) Plaintiff failed to do so. (ECF No. 144 at 1.) 28 /// 2 and found that Steve Ballentine’s last name was spelled “Ballantyne” twice in a daily 3 medical sign in/out log. (ECF No. 146 at 6; see also ECF No. 129 at 1, 23, 25.) Plaintiff 4 requested an extension of time to conduct an online search of addresses under Steve 5 Ballantyne and to process service on him. (ECF No. 129 at 7.) 6 B. Discussion 7 This Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 9 timely objects to a magistrate judge's report and recommendation, then the Court is 10 required to “make a de novo determination of those portions of the [report and 11 recommendation] to which objection is made.” Id. Because of Plaintiff's objection to the 12 R&R, the Court has undertaken a de novo review of it, including the underlying briefs. The 13 Court finds good cause to adopt the R&R in full and overrules Plaintiff’s objection. 14 Judge Baldwin recommends that the Court deny Plaintiff’s Motion to Correct (ECF 15 No. 129) and that Defendant Steve Ballentine be dismissed for failure to properly 16 effectuate service of process. (ECF No. 144 at 1.) Federal Rule of Civil Procedure 4(m) 17 provides that the Court “must dismiss the action without prejudice against defendant or 18 order that service be made within a specified time” if service was not effectuated within 90 19 days of the filing of the complaint. Fed. R. Civ. P. 4(m). “But if the plaintiff shows good 20 cause for the failure, the court must extend the time for service for an appropriate time.” 21 Id. 22 Plaintiff argues that he should be given an extension of time to effectuate service 23 on Steve Ballantyne for a few reasons. First, Plaintiff asserts that the U.S. Marshal found 24 Ballantyne but refused service in bad faith because of the misspelled name, based on the 25 mere fact that the proof of service for the summons stated that the server located the 26 address but the “name is not accurate.” (ECF No. 146 at 9 (citing to ECF No. 77 at 3).) 27 Without more evidence, Plaintiff’s objection is little more than conjecture and is overruled. 28 /// 1 Plaintiff also insists he should be given an extension of time because (1) Plaintiff 2 || did not discover Defendant’s correct name until December 2019; (2) Defendant Ballantyne 3 || would not be prejudiced by being brought into this case; and (3) Plaintiff will be significantly 4 || prejudiced by dismissal of Defendant Ballantyne. (/d. at 6, 9.) The Court rejects these 5 || arguments because Plaintiff was given almost a year—and therefore ample opportunity— 6 || to effectuate service. (See ECF No. 144 at 1.) Furthermore, granting Plaintiff an extension 7 || of time now would delay the case given that dispositive motions were due on December 8 || 18, 2019, and a joint pretrial order was due by January 17, 2019. (ECF No. 96 at 3.) 9 Because Plaintiff has not filed a proof of service for Defendant Ballantine to this 10 || date, nor has he demonstrated good cause for an extension of time for service, the Court 11 || overrules Plaintiff's objection and dismisses Defendant Ballantine. The Court also denies 12 || Plaintiff's Motion to Correct (ECF No. 29) as moot. 13 || IV. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several cases 15 || not discussed above. The Court has reviewed these arguments and cases and determines 16 || that they do not warrant discussion as they do not affect the outcome of the motions before 17 || the Court. 18 It is therefore ordered that Plaintiff's objection (ECF No. 147) to Judge Baldwin’s 19 || minute order is overruled. 20 It is further ordered that Judge Baldwin’s R&R (ECF No. 144) is accepted and 21 || adopted in full. 22 It is further ordered that claims against Defendant Ballantine are dismissed without 23 || prejudice. 24 It is further ordered that Plaintiff's motion to correct the identification of Defendant 25 || Steve Ballantyne (ECF No. 129) is denied as moot. 26 DATED THIS 27" day of March 2020. ny f CL) MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE