1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Angelica M Loreto, No. CV-22-00269-TUC-JAS (MSA)
10 Plaintiff, ORDER
11 v.
12 Arizona Board of Regents, et al.,
13 Defendants. 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Martinez (Doc. 40). The Report and Recommendation recommends 17 granting in part and denying in part Defendants’ Motion to Dismiss (Doc. 37). The Court 18 has reviewed the entire record in this case (see in particular Docs. 36–42) and the relevant 19 legal authority bearing on this case. Defendants filed objections to the Report and 20 Recommendation.1 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Martinez, the Court exercises 23 its discretion to not consider those matters and considers them waived.2 United States v.
24 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 25 2 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 26 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 27 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 28 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 1 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 2 required, to consider evidence presented for the first time in a party's objection to a 3 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 4 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 5 for a de novo determination rather than de novo hearing, Congress intended to permit 6 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 7 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 8 judge system was designed to alleviate the workload of district courts . . . To require a 9 district court to consider evidence not previously presented to the magistrate judge would 10 effectively nullify the magistrate judge's consideration of the matter and would not help to 11 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 12 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 13 feint and weave at the initial hearing, and save its knockout punch for the second round . . 14 . Equally important, requiring the district court to hear evidence not previously presented 15 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 16 to permit a litigant to set its case in motion before the magistrate, wait to see which way 17 the wind was blowing, and—having received an unfavorable recommendation—shift gears 18 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 19 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 20 Magistrates Act is to improve the effective administration of justice.”). 21 Assuming that there has been no waiver, the Court has conducted a de novo review 22 as to Defendants’ objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 23 being served with [the Report and Recommendation], any party may serve and file written 24 objections to such proposed findings and recommendations as provided by rules of court. 25 A judge of the court shall make a de novo determination of those portions of the report or
26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 specified proposed findings or recommendations to which objection is made. A judge of 2 the court may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge. The judge may also receive further 4 evidence or recommit the matter to the magistrate judge with instructions.”). 5 As referenced above, in addition to reviewing the Report and Recommendation and 6 any objections and responsive briefing thereto, the Court’s de novo review of the record 7 includes review of the record and authority before United States Magistrate Judge Martinez 8 which led to the Report and Recommendation in this case. 9 Upon de novo review of the record and authority herein, the Court finds Defendants’ 10 objections to be without merit, rejects those objections, and adopts United States 11 Magistrate Judge Martinez’s Report and Recommendation. See, e.g., United States v. 12 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 13 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 14 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 15 as a sign that he has not received his due. Yet we see no reason to infer abdication from 16 adoption. On occasion this court affirms a judgment on the basis of the district court's 17 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 18 rather, that after independent review we came to the same conclusions as the district judge 19 for the reasons that judge gave, rendering further explanation otiose. When the district 20 judge, after reviewing the record in the light of the objections to the report, reaches the 21 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 22 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 23 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 24 is statutorily and constitutionally required when written objections to a magistrate's report 25 are timely filed with the district court . . . The district court's duty in this regard is satisfied 26 only by considering the actual testimony [or other relevant evidence in the record], and not 27 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 28 we presume the district court knew of these requirements, so the express references to de 1 novo review in its order must be taken to mean it properly considered the pertinent portions 2 of the record, absent some clear indication otherwise . . . Plaintiff contends . . .
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Angelica M Loreto, No. CV-22-00269-TUC-JAS (MSA)
10 Plaintiff, ORDER
11 v.
12 Arizona Board of Regents, et al.,
13 Defendants. 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Martinez (Doc. 40). The Report and Recommendation recommends 17 granting in part and denying in part Defendants’ Motion to Dismiss (Doc. 37). The Court 18 has reviewed the entire record in this case (see in particular Docs. 36–42) and the relevant 19 legal authority bearing on this case. Defendants filed objections to the Report and 20 Recommendation.1 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Martinez, the Court exercises 23 its discretion to not consider those matters and considers them waived.2 United States v.
24 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 25 2 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 26 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 27 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 28 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 1 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 2 required, to consider evidence presented for the first time in a party's objection to a 3 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 4 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 5 for a de novo determination rather than de novo hearing, Congress intended to permit 6 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 7 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 8 judge system was designed to alleviate the workload of district courts . . . To require a 9 district court to consider evidence not previously presented to the magistrate judge would 10 effectively nullify the magistrate judge's consideration of the matter and would not help to 11 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 12 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 13 feint and weave at the initial hearing, and save its knockout punch for the second round . . 14 . Equally important, requiring the district court to hear evidence not previously presented 15 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 16 to permit a litigant to set its case in motion before the magistrate, wait to see which way 17 the wind was blowing, and—having received an unfavorable recommendation—shift gears 18 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 19 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 20 Magistrates Act is to improve the effective administration of justice.”). 21 Assuming that there has been no waiver, the Court has conducted a de novo review 22 as to Defendants’ objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 23 being served with [the Report and Recommendation], any party may serve and file written 24 objections to such proposed findings and recommendations as provided by rules of court. 25 A judge of the court shall make a de novo determination of those portions of the report or
26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 specified proposed findings or recommendations to which objection is made. A judge of 2 the court may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge. The judge may also receive further 4 evidence or recommit the matter to the magistrate judge with instructions.”). 5 As referenced above, in addition to reviewing the Report and Recommendation and 6 any objections and responsive briefing thereto, the Court’s de novo review of the record 7 includes review of the record and authority before United States Magistrate Judge Martinez 8 which led to the Report and Recommendation in this case. 9 Upon de novo review of the record and authority herein, the Court finds Defendants’ 10 objections to be without merit, rejects those objections, and adopts United States 11 Magistrate Judge Martinez’s Report and Recommendation. See, e.g., United States v. 12 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 13 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 14 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 15 as a sign that he has not received his due. Yet we see no reason to infer abdication from 16 adoption. On occasion this court affirms a judgment on the basis of the district court's 17 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 18 rather, that after independent review we came to the same conclusions as the district judge 19 for the reasons that judge gave, rendering further explanation otiose. When the district 20 judge, after reviewing the record in the light of the objections to the report, reaches the 21 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 22 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 23 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 24 is statutorily and constitutionally required when written objections to a magistrate's report 25 are timely filed with the district court . . . The district court's duty in this regard is satisfied 26 only by considering the actual testimony [or other relevant evidence in the record], and not 27 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 28 we presume the district court knew of these requirements, so the express references to de 1 novo review in its order must be taken to mean it properly considered the pertinent portions 2 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 3 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 4 brevity does not warrant look[ing] behind a district court's express statement that it engaged 5 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 6 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 7 granting of summary judgment . . . Murphy's contention that the district judge did not 8 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 9 brief order mentioned that objections had been made and overruled. We do not construe 10 the brevity of the order as an indication that the objections were not given due 11 consideration, especially in light of the correctness of that report and the evident lack of 12 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 13 (“When a party timely objects to a magistrate judge's report and recommendation, the 14 district court is required to make a de novo review of the record related to the objections, 15 which requires more than merely reviewing the report and recommendation . . . This court 16 presumes that the district court properly performs its review and will affirm the district 17 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 18 The burden is on the challenger to make a prima facie case that de novo review was not 19 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 20 district court judge did not review the magistrate's report de novo . . . There is no evidence 21 that the district court did not conduct a de novo review. Without any evidence to the 22 contrary . . . we will not assume that the district court did not conduct the proper review.”); 23 United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023) (“Under this statutory scheme [of 24 the Federal Magistrates Act], the district court did what § 636(b) requires: it indicated that 25 it reviewed the record de novo, found no merit to Ramos's objections, and summarily 26 adopted the magistrate judge's analysis in his report and recommendation. We have 27 presumed that district courts conduct proper de novo review where they state they have 28 done so, even if the order fails to specifically address a party's objections.”).° 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 (1) United States Magistrate Judge Martinez’s Report and Recommendation (Doc. 40) 4 is accepted and adopted. 5 (2) Defendants’ objections are rejected. 6 (3) Defendants’ Motion to Dismiss (Doc. 37) is dismissed in part and granted in part. 7 (4) This case is referred back to the Magistrate (now Magistrate Judge Aguilera per 8 Doc. 43) for further proceedings. 9 Dated this 25th day of September, 2024. 10 11 Desks Honorable James A. Soto 13 United States District Judge 14 15 3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (the district court's assurance, in a written order, that the court has complied with the de novo review 17 requirements of the statute in reviewing the magistrate judge's proposed findings and recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on 18 appeal; emphasizing that filt is clear that Pinkston's argument in this regard is nothing more than a collateral attack on the magistrate's reasoning, masquerading as an assault on the district court's entirely acceptable decision to adopt the magistrate S opinion. . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order 20|| is terse... However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires the district court to make any specific findings; the district court must merely conduct a de novo review of the record... It is common practice among district judges . . . to [issue a terse order stating that it conducted a de novo review as to objections] . . . and adopt the 22 magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that 23 analysis. We cannot interpret the district court's [terse] statement as establishing that it failed to perform the required de novo review ... We hold that although the district court's 24] decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7" Cir. 25 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed. But this de novo determination is not the same as a de novo hearing . . . [I]f following a review of the record the district court is satisfied with the magistrate judge's findings and recommendations it may in its discretion treat those findings and recommendations as its own.”). 28
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