Opinion
No. CIV 00-1091 PK/WWD (ACE)
April 23, 2001
ORDER
THIS MATTER came on for a status conference on April 17, 2001. Upon consideration whereof,
(1) Defendants Ran Ken, Inc., Farmington London Pub, Inc., Gregory Hamilton, Peter Kuch and Terry McDaniel have objected pursuant to Fed.R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A) to the magistrate judges order that Defendants shall not be allowed to question Plaintiffs in discovery concerning Plaintiffs sexual activities outside the workplace. Memorandum Opinion and Order at 2, filed April 5, 2001 (Doc. 83). They contend that the order is clearly erroneous and contrary to law. Defendants Joint Objections to Magistrate Judges Order Granting Plaintiffs Motion for Protective Order to Prevent Discovery of the Plaintiffs Sexual Conduct at 2, filed April 16, 2001 (Doc. 97). Of course, within this framework, the magistrate judges discovery rulings are reviewed for an abuse of discretion. See Pippinger v. Rubin, 129 F.3d 519, 533 534 n. 8 (10th Cir. 1997).
(2) These Defendants have also filed a motion urging that the magistrate judge reconsider his order. Defendants Joint Motion for Reconsideration Due to Recent Deposition Testimony filed April 16, 2001 (Doc. 98). To preserve appellate review, Defendants are required to file an objection with the district court. Fed.R.Civ.P. 72(a); Pippinger, 129 F.3d at 533. Fed.R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A) do not contain a provision allowing an objection to ripen subsequent to a magistrate judges decision on an underlying motion for reconsideration. Cf. Fed.R.App.P. 4(a)(4)(A). Prior to such a provision in the appellate rules, the circuit allowed the district court to pass on such motions before entertaining the appeal. Garcia v. Regents of the Univ. of Cal., 737 F.2d 889, 890 (10th Cir. 1984). By analogy, within ten days after completion of briefing on the motion to reconsider, the magistrate judge shall indicate his intention to grant or deny the motion. If the motion is granted, these Defendants may indicate their intention to dismiss their present objection. If the motion is not granted, these Defendants may then object to any order on reconsideration and those objections will be consolidated with the present objection.
(3) Defendant Ran Ken, Inc. has filed a Motion for a Separate Bench Trial To Decide Successor Liability filed April 6, 2001 (doc. 86). See generally Trujillo v. Longhorn Mfg. Co., Inc., 694 F.2d 221, 224-25 (10th Cir. 1982) (discussing successor liability). To the extent that the successor liability issue is not otherwise resolved, the court will set this issue for trial on June 21, 2001, at the United States Courthouse, 333 Lomas Blvd. NW, Albuquerque, New Mexico at 9:00 a.m. Trial briefs, together with proposed findings of fact and conclusions of law, witness lists and exhibit lists, must be filed and served 21 days before trial. Any motions in limine should be filed and served not later than 14 calendar days before trial; responses should be filed and served within 7 days of the motion in limine, but not later than 7 calendar days before trial.
IT IS SO ORDERED.