Opinion
CV-21-00934-PHX-SMB (CDB)
05-02-2023
Maxima Guerrero Sanchez, et al., Plaintiffs, v. City of Phoenix, et al., Defendants.
ORDER
HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE
United States Magistrate Judge Camille D. Bibles has issued a report and recommendation (“R&R”) (Doc. 123), recommending that Defendants' Motion to Dismiss (Doc. 112) be granted. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (Doc. 123 at 3-4) (citing Federal Rule of Civil Procedure 72). Plaintiffs Anthony Harding, Jeanette Hunt, Erika Martin, Darric Newman, Corey Niass, Jordan Thomas, Angela Tierney, Fabian Cordova, and Brittany Young (“Subject Plaintiffs”) filed an Objection. (Doc. 133.) Defendants filed a Reply. (Doc. 134.) After reviewing the parties' briefing and relevant law, the Court will adopt and accept the R&R.
In the Objection, Subject Plaintiffs argue the R&R should have applied Rule 37 instead of granting relief under Rule 41. (Doc. 133 at 2-3.) But Defendants note that the Objection does not challenge the Magistrate Judge's analysis of the Carey factors and argue the Subject Plaintiffs waived this argument, because it was never raised before the Magistrate Judge. (Doc. 134 at 3-4); Carey v. King, 856 F.2d 1439 (9th Cir. 1998). In the Ninth Circuit, district courts may-but are not required to-consider new factual allegations or evidence when reviewing a magistrate judge's recommendations. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Nor must district courts consider new arguments made in objection to a magistrate judge's recommendations. See Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002). This discretion is important to discourage parties from trying out one argument to the magistrate judge and, if the argument is lost, making a new argument to the district court judge. See Howell, 231 F.3d at 621. “[I]n making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion.” Id. at 62122.
Here, Subject Plaintiffs were represented by counsel when responding to the Motion to Dismiss. The Objection provides no explanation for why their Response did not or could not challenge the use of Rule 41. The Court will therefore exercise its discretion to not consider this new argument. The Court also notes that Subject Plaintiffs did not argue that the Magistrate Judge's ruling was made in error by being based on Rule 41. Nevertheless, the Court has reviewed the pleadings and agrees with the Magistrate Judge's analysis. The Court accepts and adopts the R&R.
Accordingly, IT IS ORDERED adopting the R&R (Doc. 123) and granting Defendants' Motion to Dismiss (Doc. 112). Plaintiffs Anthony Harding, Jeanette Hunt, Erika Martin, Darric Newman, Corey Niass, Jordan Thomas, Angela Tierney, Fabian Cordova, and Brittany Young are terminated.