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Judith Fonseca v. City of Red Bluff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 6, 2011

JUDITH FONSECA,
PLAINTIFF,
v.
CITY OF RED BLUFF, DEFENDANT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Lynn Hubbard, the original counsel of record for Plaintiff Judith Fonseca in this litigation, filed, on April 26, 2011, a Motion for Review of the Magistrate Judge's April 15 Order declining Hubbard's request to continue the hearing on Defendant's Motion to Compel scheduled for May 5, 2011. That Motion was scheduled to be heard before this Court on June 9, 2011.

By Order dated May 15, 2011, the Court granted Hubbard's Motion to Withdraw as counsel of record for Plaintiff in this litigation, leaving Plaintiff representing herself in pro se. Given Hubbard's withdrawal from this litigation, as well as the Court's declination to hear the instant Motion for Review prior to the May 5, 2011 hearing on the Motion to Compel, the Motion for Review is for all intents and purposes moot at this juncture.

Attorney Hubbard's Motion for Review fails substantively in any event. In reviewing a magistrate judge's determination, the assigned district judge shall apply a clear error standard of review pursuant to Local Rule 72-303(f), as specifically authorized by Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A).*fn1 Under that standard, this Court must accept the Magistrate Judge's decision unless it has a "definite and firm conviction that a mistake has been committed." Concrete Pipe & Products of Calif., Inc. v. Construction Laborers Pension Trust for So. Calif., 508 U.S. 602, 622 (1993). If the Court believes the conclusions reached by the Magistrate Judge were at least plausible, after considering the record in its entirety, the Court will not reverse even if convinced that it would have weighed the evidence differently. Phoenix Eng. & Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137, 1141 (9th Cir.1997).

Here, as the Magistrate Judge pointed out in the April 15, 2011 that is the subject of the Motion for Review, attorney Hubbard's obligation to timely respond to discovery prior to moving to withdraw is an entirely separate issue than the propriety of withdrawal itself. The Magistrate Judge's decision denying a continuance of the Motion to Compel on that basis was not in clear error.

The Motion for Review filed on behalf of Plaintiff (ECF No. 17) is accordingly DENIED.*fn2

IT IS SO ORDERED.


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