A. Whether a motion is potentially dispositive is a practical inquiry Tenth Circuit authority requires that a motion not described on its face as one of the eight dispositive motions in Section 636(b)(1)(A) "are nevertheless to be treated as such a motion when they have an identical effect." See Ocelot Oil, 847 F.3d at 1462.

The Court may, in its discretion, receive and “consider evidence presented for the first time on a party’s objection to a magistrate judge’s recommendation.” United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (discussing the Circuit split on whether a district court must or may consider new evidence when reviewing de novo a magistrate judge's findings and recommendation, and concluding that a district “has discretion, but is not required” to consider new evidence); 28 U.S.C. § 636(b)(1). “[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.”

The standard depends on whether the issue decided by the magistrate is dispositive or non-dispositive.”) (emphasis added); R.F.M.A.S., Inc. v. So, 748 F. Supp. 2d 244, 285 n.1 (S.D.N.Y. 2010) (“Although Magistrate Judge Dolinger characterized his ruling as a Report and Recommendation, for the purposes of the applicable standard of review this Court considers the relevant inquiry, consistent with the plain text of 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), to be whether the pretrial matter at issue is ‘dispositive of a party's claim or defense,’ rather than how a magistrate judge styles his decision.”) (emphasis added); Chichinlnisky v. Trustees of Columbia Univ. in City of New York, No. 91-cv-4617, 1993 WL 403972, at *9 (S.D.N.Y. Oct. 7, 1993) (“For this Court to reject all or a portion of the report [and recommendation], Columbia must demonstrate that the Magistrate Judge’s findings are clearly erroneous or contrary to law.”)

But Thorpe and Hamrick again misunderstand the rules governing the review of magistrate judges’ decisions. Rule 72(b)(3) is inapplicable here because it applies only when magistrate judges issue reports or recommendations on “Dispositive Motions [or] Prisoner Petitions” referred to them under 28 U.S.C. § 636(b)(1)(B). Fed. R. Civ. Proc. 72(b).

As such, both Defendants simply misstate the law by implying a de novo standard of review applies. Instead, this Court should only “modify or set aside any part of the order that is clearly erroneous or contrary to law.” FED.R.CIV.P. 72(a); 28 U.S.C. § 636(b)(1)(A). A. DenTek’s Moving Standard from “Universal Rule” to “General Rule” Demonstrates Its Failure to Show that the Ruling was “Clearly Erroneous or Contrary to the Law.”

Fed. R. Civ. P. 72(b); Loc. R. 301.5.b. Judge Garbis’s Order of Referral does not state whether it is pursuant to 28 U.S.C. § 636(b)(1)(A) or (B), but to the extent that this Memorandum and Order orders non- dispositive relief, it shall be pursuant to 28 U.S.C. § 636(b)(1)(A); to the extent that it recommends dispositive relief, it shall be pursuant to 28 U.S.C. § 636(b)(1)(B). Either way, the parties have fourteen days in which to serve and file objections to any aspect of this Memorandum, Order and Recommendation. Loc. R. 301.5.

may issue a recommendation rather than an order. See, e.g., Meridian Project Sys., Inc., 2006 U.S. Dist. LEXIS 79862, at *10-11 (recommendation rather than order that Rule 37(c) motion be granted because it required interpretation of an order issued by the trial judge). 2 Contrary to Oracle’s argument (Opp. at 15), Defendants’ intent to file a Rule 56 motion regarding royalty damages has nothing to do with the merits of this discovery sanctions motion and does not makes it improper. Case4:07-cv-01658-PJH Document399 Filed08/04/09 Page6 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SFI-615769v1 - 3 - REDACTED DEFENDANTS’ REPLY ISO MOTION FOR SANCTIONS Case No. 07-CV-1658 PJH (EDL) City Schools Dist., No.CV-F-04-6284, 2006 U.S. Dist. LEXIS 94274, * (E.D. Cal. Dec. 18, 2006) (referring sanctions motion to trial court because of request for terminating sanction). This Court thus has authority under 28 U.S.C. § 636 and the relevant case law to decide Defendants’ motion. B. SANCTIONS ARE WARRANTED UNDER RULES 37(c) AND 16(f). 1. No Finding Of Bad Faith Is Required.

A motion to transfer venue is a pretrial matter, and it is not a specifically listed exception in 28 U.S.C. § 636(b)(1)(A). Therefore, the standard of review specified in 28 U.S.C. § 636(b)(1)(A), which is that a District Court may reconsider a pretrial matter where a Magistrate Judge’s order is “clearly erroneous or contrary to law,” applies to the instant review of the Magistrate Judge’s Order. Additionally, Burnett’s Motion is an abuse of this Court’s resources.

A motion to transfer venue is a pretrial matter, and it is not a specifically listed exception in 28 U.S.C. § 636(b)(1)(A). Therefore, the standard of review specified in 28 U.S.C. § 636(b)(1)(A), which is that a District Court may reconsider a pretrial matter where a Magistrate Judge’s order is “clearly erroneous or contrary to law,” applies to the instant review of the Magistrate Judge’s Order. The denial of a motion to transfer is nondispositive: “[b]oth in common usage among lawyers, and in practical effect, the granting of a motion to transfer is not dispositive—the case would proceed, in federal court, much the same as it would had it stayed in the first jurisdiction.

R. CIV. P. 72 (emphasis added). It is uncontested that the Texas Magistrate Judge issued his transfer order on March 25, and that Time could have, but did not, move for reconsideration of the magistrate judge’s ruling with the district court pursuant to 28 U.S.C. § 636(b)(1)(A). Thus, Time cannot now seek reconsideration of the Texas Magistrate Judge's transfer order pursuant Rule 72.