Opinion
No. 00-4124-SAC.
March 1, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the report and recommendation filed by the magistrate judge (Dk. 58), the plaintiff's response (Dk. 59), and the plaintiff's motion for revision of the pretrial order (Dk. 60). This is an employment discrimination case in which the plaintiff alleges that the defendant discriminated against him on the basis of his gender, age, race, physical handicap, and retaliation by not re-employing him on six separate occasions. The court has received a proposed pretrial order that appears ready for the court's signature.
REPORT AND RECOMMENDATION
The defendant moved to dismiss this case as a sanction for the plaintiff's failure to comply with the magistrate judge's order compelling the plaintiff's production of discovery. This court referred the motion to the magistrate judge who issued a report recommending that the district court deny the motion to dismiss and consider less drastic sanctions. The magistrate judge reported that the plaintiff had made a "purported response" and "produced some documents" but that the plaintiff's response was still so vague and disorganized as to prevent the defendant from learning whether the plaintiff had produced all the requested documents. Recognizing not only the defendant's efforts leading to this motion but also the plaintiff's pro se status, the magistrate judge concluded that the record did not show the plaintiff had intentionally "stonewalled discovery." The magistrate judge also pointed out that the defendant's motion failed to even consider any sanction short of dismissal. Consequently, the magistrate judge recommended an order by the district court directing the:
plaintiff, within 11 days and at his sole expense, to retrieve, photocopy, organize in separately labeled folders or boxes, and produce to defense counsel in her office, all documents (regardless of how voluminous they may be) that fall within each and every one of the five categories of documents specified in the court's October 4, 2001-order compelling discovery. See Fed.R.Civ.P. 34(b). Judge Crow should warn plaintiff, again, that failure to comply fully and timely may (and probably will) result in the imposition of very severe and drastic sanctions, including but not limited to dismissal of the case, with prejudice. Judge Crow's order should allow defendant up to sixty additional days to complete discovery, if deemed necessary based on defense counsel's review of the documents so produced.
(Dk. 58, pp. 5-6).
With his written response to the magistrate judge's report and recommendation, the plaintiff has submitted additional copies of documents believed responsive to the earlier order compelling discovery. The plaintiff further explains his reasons for not producing the documents earlier and for not having certain requested documents. The defendant has filed nothing in response to the plaintiff's recent filing and production of documents.
Rather than a written objection to the magistrate judge's report and recommendation, the plaintiff's latest filing (Dk. 59) appears intended simply to comply with it and to explain his failure to produce the requested matters earlier. The plaintiff does not identify any error within the report and recommendation nor does he express any reservations about meeting its terms. The court, therefore, adopts the report and recommendation insofar as it will deny the defendant's motion to dismiss. Because the defendant has filed no objection to the report and recommendation and no response to the plaintiff's obvious attempts at complying with the report and recommendation, the court will not address the specifics of the plaintiff's document production nor issue an admonition or grant a discovery extension. As far as the defendant needing additional discovery based on this ruling and the plaintiff's recent response, any such motion or request shall be presented to the magistrate judge. Finally, the court sets the deadline of April 11, 2002, for the filing of any dispositive motions.
Those parts of the report and recommendation to which there has been no objection are taken as true and judged on the applicable law. See Campbell v. United States District Court for the Northern Dist. of California, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879 (1974); see also Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (holding that "[i]n the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate"). The district court has considerable judicial discretion in choosing what reliance to place on the magistrate judge's findings and recommendations. See Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir. 1991) (citing United States v. Raddatz, 447 U.S. 667 (1980)), cert. denied, 502 U.S. 1110 (1992). In short, the district court may accept, reject, or modify the magistrate judge's findings, or recommit the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1).
MOTION FOR REVISION OF PRETRIAL ORDER
Though the pretrial order has yet to be signed or filed, the plaintiff has filed a motion asking for it to be revised. The court is aware that the magistrate judge considered but decided against making any of the plaintiff's requested revisions prior to submitting the proposed pretrial order to this court for its approval and signature. There is nothing of record to suggest that the plaintiff consulted with defendant's counsel about his proposed changes. The district court also has reviewed the plaintiff's motion and will sign the proposed pretrial order in its present form. The plaintiff's requested revisions are concerned more with the narrow details of evidence and arguments than with the general substance of the claims and defenses material in this case. The court denies this motion.
IT IS THEREFORE ORDERED that the magistrate judge's Report and Recommendation (Dk. 58) is adopted insofar as the defendant's motion to dismiss is denied;
IT IS FURTHER ORDERED that requests for additional discovery based on this ruling and the plaintiff's recent response shall be presented to the magistrate judge for ruling, and the deadline for the filing of dispositive motions is April 11, 2002;
IT IS FURTHER ORDERED that the plaintiff's motion for revision of the pretrial order (Dk. 60) is denied.