Opinion
No. CV-16-08131-PCT-JAT (ESW)
02-02-2017
Harry McCabe, Sr., Petitioner, v. USA, Respondent.
ORDER
Pending before the Court is Respondent's appeal (Doc. 13) of the Magistrate Judge's denial (Doc. 12) of the motion to stay this case.
When a Magistrate Judge issues a pretrial order, this Court may reverse the order "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Barten v. State Farm Mut. Auto. Ins. Co., No. CZV-12-0399-TUC-CKJ, 2014 U.S. Dist. LEXIS 133569, at *10 (D. Ariz. Sept. 23, 2014) (quoting Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1041 (9th Cir. 2010)). The Court will overturn a Magistrate Judge's decision only if it is the result of "clear error." Maisonville v. F2 America, Inc., 902 F.2d 746, 747 (9th Cir. 1990) (citations omitted). Under this standard of review, the Magistrate Judge's decision is "not subject to de novo determination," and the Court "may not simply substitute its judgment for that of the deciding court." Grimes v. City and Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). In order to find clear error, the Court must have a "definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001).
The Court notes that in the appeal (Doc. 13 at 4), Respondent appears to apply the legal standard for objections to a Report and Recommendation. However, that legal standard does not apply to appeals of Magistrate Judge's orders.
Having reviewed the record, including Petitioner's response (Doc. 15) to Respondent's appeal (Doc. 13), this Court cannot conclude that the Magistrate Judge committed clear error in denying the stay. Accordingly,
This conclusion is true notwithstanding the fact that this Court might reach a different conclusion if the Court were reviewing the motion to stay de novo. See Grant v. USA, CV 16-2057-PHX-JAT (D. Ariz. October 31, 2016). --------
IT IS ORDERED that the Magistrate Judge's Order (Doc. 12) is affirmed. The appeal (Doc. 13) is denied.
Dated this 2nd day of February, 2017.
/s/ _________
James A. Teilborg
Senior United States District Judge