Opinion
No. C 06-80009 MISC MMC.
May 15, 2006
ORDER DENYING RESPONDENT'S MOTION FOR ORDER STAYING ENFORCEMENT OF SUBPOENA PENDING APPEAL; DENYING EX PARTE MOTION FOR ORDER SHORTENING TIME
Before the Court is respondent Anna's Linens Inc.'s ("Anna's Linens") motion, filed May 12, 2006, for an order staying, pending appeal, enforcement of Magistrate Judge Wayne D. Brazil's order of April 6, 2006. Also before the Court is Anna's Linens' ex parte motion, filed May 12, 2006, for an order shortening time to hear the motion for an order staying enforcement pending appeal.
On April 6, 2006, Magistrate Judge Brazil issued an order granting the Equal Employment Opportunity Commission's application for enforcement of an administrative subpoena and denying Anna's Linens' request for a protective order. On May 15, 2006, Magistrate Judge Brazil issued an order amending the order of April 6, 2006, to clarify said order was in the form of a report and recommendation, and setting a deadline by which any party may file an objection. See 28 U.S.C. § 636(b)(1)(B). In the interim, on May 5, 2006, Anna's Linens filed a notice of appeal from the order of April 6, 2006.
Because resolution of the application for enforcement of the subject subpoena is dispositive of the above-titled miscellaneous matter, the order of April 6, 2006 is not a final order. See Estate of Conners v. O'Connor, 6 F. 3d 656, 658-59 (9th Cir. 1993) (holding where magistrate judge's order addresses dispositive matter, such order is, irrespective of how characterized, a recommendation to district court); see 28 U.S.C. § 636(b) (providing, after period to file objections to recommendations has passed, district court "may accept, reject, or modify, in whole or in part, the recommendations made by the magistrate judge"). Consequently, the notice of appeal filed May 5, 2006 is a "nullity" that does not divest the Court of jurisdiction to rule on the instant recommendation at the proper time. See Estate of Conners, 6 F. 3d at 659 (holding notice of appeal from order on dispositive motion issued by magistrate judge was "nullity" and did not divest district court of jurisdiction to issue order construing magistrate judge's order as recommendation and adopting recommendation as modified).
Accordingly, respondent's motion for a stay pending appeal and motion for an order shortening time to hear said motion are hereby DENIED.
IT IS SO ORDERED.