Free Letter - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA Sandra Day O'Connor United States Courthouse

Neil V. Wake
United States District Judge

401 W. Washington St., SPC 52 Suite 524 Phoenix, Arizona 85003-2154

Telephone: (602) 322-7640 Fax: (602) 322-7644

February 20, 2007

Cathy A. Catterson, Clerk of the Court United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 [By facsimile, 415-556-8181, and by U.S. mail] Re: Memorandum decision dated February 12, 2007 in Anthony Keith Ogle v. Terry Stewart, No. 04-17534, District of Arizona No. CV 03-0200 Dear Ms. Catterson: I write to the Court pursuant to General Orders 12.10(a), which states: When a district judge, magistrate judge, or bankruptcy judge is aware of a mistake in a disposition by this court involving an appeal from that judge's decision, has reason to believe that the affected parties may not point out the mistake, and believes that justice will be disserved if the mistake is not corrected, the judge may bring the mistake to the attention of this court by way of a letter addressed to the Clerk of the Court. The Clerk shall distribute the letter to the members of the panel or as is otherwise appropriate. The judge shall provide copies of the letter to all parties to the appeal. The memorandum decision dated February 12, 2007, reverses the judgment of this court (docket # 51) for the erroneous denial (docket # 39) of Plaintiff's Motion to Amend Complaint to Add Two Names (docket # 34). The memorandum decision does not address a procedural fact that may preclude reversal, with consequences not just for the litigants in this case but also for the institutional interests of the district courts. The memorandum decision at page 2 states, "The district court denied Ogle's motion to amend the complaint" and concludes at pages 3-7 that the denial was reversible error. The memorandum decision does not note, however, that the order denying the Motion to Amend was entered by a magistrate judge, to whom this case was referred (docket # 2) pursuant to 28 U.S.C. § 636(b)(1)(A) and our Local Rule LRCiv 72.1(b). The memorandum decision fails to note that no objection was made to the ruling of the magistrate judge. Rule 72(a), Fed. R. Civ. P., sets a 10 day limit for seeking district judge review of a magistrate judge's nondispositive ruling, on penalty of forfeiture of any error:

Case 2:03-cv-00200-NVW-MHB

Document 61

Filed 02/20/2007

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February 20, 2007 Cathy A. Catterson Page 2 (a) Nondispositive Matters. A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. See generally Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1173-77 (9th Cir. 1996); United States Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 (9th Cir. 1985) (motion to amend complaint is a nondispositive motion); United States v. ReynaTapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc) (forfeiture of error for failure to object within 10 days under parallel statute, 28 U.S.C. § 636(b)(1)(C), concerning magistrate judge reports and recommendations on dispositive rulings). Very truly yours,

Neil V. Wake United States District Judge cc: Anthony Keith Ogle 42922 ASPC-Buckeye-BU P. O. Box 3200 Buckeye, AZ 85326 Wanda Hoffman Office of the Attorney General Liability Management Section 177 N. Church Street Tucson, AZ 85701 [By facsimile, 520-628-6050, and by U.S. mail]

Case 2:03-cv-00200-NVW-MHB

Document 61

Filed 02/20/2007

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