Sundby v. Marquee Funding Group, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Dale Sundby, Trustee, Case No.: 19-cv-00390-GPC-AHG 11 Plaintiff, 12 ORDER: v. 13 (1) DENYING PLAINTIFF’S Marquee Funding Group, Inc.; Salomon 14 Benzimra, Trustee; Stanley Kesselman, OBJECTION AS TO THE DENIAL OF HIS MOTION FOR IMMEDIATE 15 Trustee; Jeffrey Myers; Kathleen Myers; CONTINUANCE, (ECF No. 140); Andres Salsido, Trustee; Benning 16 Management Group 401(k) Profit (2) SETTING A BRIEFING 17 Sharing Plan; Christopher Myers; Vickie SCHEDULE AS TO PLAINTIFF’S McCarty; Dolores Thompson; Kimberly 18 Gill Rabinoff; Steven M. Cobin, Trustee; OBJECTION TO THE DENIAL OF HIS MOTION TO FILE UNDER 19 Susan L. Cobin, Trustee; Equity Trust SEAL, (ECF No. 138.) Company, Custodian FBO Steven M. 20 Cobin Traditional IRA; Todd B. Cobin, (ECF No. 146.) 21 Trustee; Barbara A. Cobin, Trustee; Fasack Investments LLC; and Does 1-X, 22 Defendants. 23 24 On June 15, 2020, Plaintiff Dale Sundby filed a motion pursuant to Federal Rule of 25 Civil Procedure (“Rule”) 72(a) seeking that the Court find Magistrate Judge Alison H. 26 Goddard’s June 12, 2020 order, (ECF No. 144), is clearly erroneous or contrary to law. 27 (ECF No. 146.) 1 Pursuant to Rule 72(a), a “party may serve and file objections to the order [of a 2 Magistrate Judge] within 14 days after being served with a copy.” Fed. R. Civ. P. 72(a). 3 For non-dispositive orders, a timely objection triggers the district judge’s responsibility to 4 “consider timely objections and modify or set aside any part of the order that is clearly 5 erroneous or is contrary to law.” Id.; see also Mavrix Photographs, LLC v. Livejournal, 6 Inc., 873 F.3d 1045, 1051 (9th Cir. 2017). The “clearly erroneous” prong “applies to 7 factual findings and discretionary decisions made in connection with non-dispositive 8 pretrial discovery matters.” F.D.I.C. v. Fid. & Deposit Co. of Maryland, 196 F.R.D. 375, 9 378 (S.D. Cal. 2000) (citation omitted). The “contrary to law” prong “permits 10 independent review of purely legal determinations by the magistrate judge.” Id. 11 Here, the subject order, in short, (1) denied Plaintiff’s motion to seal without 12 prejudice, (ECF No. 138); (2) ordered service by e-mail of Defendant’s response to the 13 Court’s Order to Show Cause (“OSC”), (ECF Nos. 132, 139); (3) ordered the filing of a 14 redacted version of that response, (ECF No. 139); and (4) denied Plaintiff’s motion to 15 continue the show cause hearing. (ECF No. 140). The instant Order addresses only the 16 Magistrate Judge’s decision as to Plaintiff’s motion for immediate continuance. 17 Having reviewed the relevant papers, (ECF Nos. 132, 140, 144, 146), the Court 18 finds that the Magistrate Judge has acted appropriately in denying Plaintiff’s motion. 19 Plaintiff points to no rule that the Magistrate Judge cannot decline a continuance in these 20 circumstances such that the June 12, 2020 order would rise to the level of “clear error.” 21 The Court, moreover, concurs in the Magistrate Judge’s reasoning that “Plaintiff has 22 failed to show good cause for this request.” (ECF No. 144 at 3.) Plaintiff’s claim that he 23 will be unable to adequately address other forthcoming filings in this case unless the OSC 24 hearing is delayed until September is unpersuasive. (ECF No. 139 at 15–16.) 25 Doing so, moreover, would mean delaying Ms. Edith Sundby’s deposition well 26 beyond the forthcoming briefing for summary judgment, which would defeat the purpose 27 of the having ordered the deposition in the first place. As the Magistrate Judge states, the 1 || depositions of Plaintiff and Mrs. Sundby “are important to the discovery in this case, 2 || given that Plaintiff and his wife are co-trustees on the trust whose assets encompass the 3 ||real property that is the subject of the loans underlying this lawsuit.” (ECF No. 144 at 3-4 4 || (citing ECF No. 92.)) 5 Consequently, the Court DENIES Plaintiff's Rule 72 Objection seeking a 6 || continuation of the OSC hearing until September 14, 2020. As to Plaintiffs other request, 7 that the Court “grant Plaintiffs motion to file under seal,’’ (ECF No. 138), the Court 8 || ORDERS a hearing be set for July 1, 2020. Any response shall be filed on or before June 9 || 19, 2020. Any reply shall be filed on or before June 23, 2020. 10 IT IS SO ORDERED. 11 Dated: June 15, 2020 < 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28