United States District Court, D. Arizona
RANER C. COLLINS, District Judge.
Before the Court is the November 5, 2013, Report and Recommendation (R&R) from Magistrate Judge Bernardo P. Velasco (Doc. 140) recommending that this Court deny Plaintiffs' Motion for Default Judgment (Doc. 96), deny Plaintiffs' Partial Motion for Summary Judgment (Doc. 88), and grant in part Defendant's Motion for Summary Judgment (Doc. 115). The R&R further recommends the Court remand this action to the state court.
Defendant filed its objections to the R&R (Doc. 143) on November 19, 2013. Defendant objects only to the recommendation to remand this matter to the state court. After an extension of time, Plaintiffs filed their objections on December 17, 2013 (Doc. 149). Defendant filed its response to the Plaintiffs' objections on January 3, 2014 (Doc. 150). Plaintiffs also filed a reply (Doc. 151) to Defendant's response; however, no replies are permitted and the Court struck Document 151 from the record.
Part of Plaintiffs objections stem from Plaintiffs' assertion that the Magistrate Judge is biased against pro se litigants and "had a desire to quickly push the case through, or out of the Federal Court." (Doc. 149 at 1). As one example of this alleged bias, Plaintiffs assert it is "fundamentally unfair" for the Magistrate Judge "to quote rare common law... that [Plaintiffs] must comport to the FRCP's." (Doc. 149 at 13). It is hardly unfair or unusual to require Plaintiffs to comply with the Federal and Local Rules, as is required of all litigants in this Court, pro se or not. Further, this action has been pending in federal court for nearly three years, and the Court previously rejected a motion by Plaintiffs themselves to remand the matter to state court. The Court has granted Plaintiffs numerous extensions and has consistently acted to ensure Plaintiffs' access to the justice process. The Court finds absolutely no merit or evidence to support Plaintiffs' allegations of bias or prejudice and they warrant no further discussion here.
Plaintiffs also attach a number of exhibits to their objections, which Defendant notes are unauthenticated and unverified. The exhibits consist of 1) letters sent to Defendant directing it to stop calling Plaintiffs, 2) a letter Plaintiffs sent to NCO Financial Systems Inc., a private entity not a party to this action, wherein Plaintiffs directed NCO to stop calling them, 3) a letter sent from NCO to Plaintiffs indicating it had no record of making any calls to Plaintiffs, and 4) a Wikipedia page on NCO. (Doc. 149 Exs. 1 & 2). The Court finds these exhibits irrelevant to the issues at hand and will not consider them here.
For the following reasons, this Court will adopt in part and reject in part the Magistrate Judge's findings in the R&R.
The factual and procedural background in this case is thoroughly detailed in Magistrate Judge Velasco's R&R (Doc. 140). This Court fully incorporates by reference the Summary section of the R&R into this Order.
II. LEGAL STANDARD
The duties of the district court in connection with a R&R are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his factual findings are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). "[T]he magistrate judge's decision... is entitled to great deference by the district court." United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). Where the parties object to a R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
a. Motion for Default Judgment
Magistrate Judge Velasco recommended this Court deny Plaintiffs' Motion for Default Judgment. Plaintiffs moved for default judgment on the basis that Defendant allegedly failed to file an answer to Plaintiffs' amended complaint. Judge Velasco recommended the motion be denied because Plaintiffs never properly served Defendant with the amended complaint pursuant to Rule 15(a)(3), Fed.R.Civ.P., and as ordered by the Court (Doc. 71).
Neither Plaintiffs nor Defendant contest the recommendation on this motion in their objections to the R&R. Accordingly, the Court adopts Magistrate Judge Velasco's recommendation to deny Plaintiffs' Motion for Default Judgment.
b. Cross Motions for Summary Judgment
Magistrate Judge Velasco recommended this Court enter an order denying Plaintiff's Partial Motion for Summary Judgment, and granting in part and denying in part Defendant's Cross-Motion for Summary Judgment. Plaintiffs moved for summary judgment on counts one, two, and three of their amended complaint, while Defendant moved for summary judgment on all counts of the amended complaint. ...