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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KEITH L. NASH,

Plaintiff,

v.

DOUG WADDINGTON, et al.,

Defendants.

Case No. C06-5127 RJB/KLS

ORDER OVERRULING

PLAINTIFFS’ OBJECTION[S] TO

THE MAGISTRATE’S ORDER

DENYING MOTION FOR

RECONSIDERATION AND DKT. 102

This matter comes before the Court on the Plaintiffs’ Objection[s] to the Magistrate’s Order

Denying Motion for Reconsideration and Dkt. 102 (Dkt. 118). The Court has considered the

plaintiff’s objections and the remainder of the file herein.

I. BACKGROUND

On February 9, 2007, Mr. Nash filed a motion to compel. Dkt. 91. Mr. Nash sought an order

“compelling the defendant’s [sic] to produce relevant information if the discovery appears to [be]

reasonably calculated to lead to the discovery of admissible evidence.” Id. at 4. Mr. Nash’s motion

does not identify particular discovery requests, but it appears that he sought discovery of other

inmates’ filing of complaints asserting the same claims raised by Mr. Nash; of any staff misconduct or

other complaints against the defendants; and of the defendants’ criminal histories. Id. at 3-4.

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ORDER 

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In the response, the defendants contended that they were unable to determine which

discovery requests Mr. Nash sought to compel. Dkt. 92 at 1. The defendants also submitted

argument and authority demonstrating that information about other inmates and about the

defendants’ past criminal histories was irrelevant, inadmissible character evidence, and contrary to

policies of the Department of Corrections. Id. at 2.

In reply, Mr. Nash asserted that he was not timely served with the defendants’ response and

that his requests sought relevant information. Dkt. 96 at 4. Mr. Nash also filed a declaration in which

he states that he attempted to clarify the purpose and relevancy of his discovery requests to opposing

counsel. Dkt. 96-2 at 2-3. The reply does clarify what discovery the plaintiff sought to compel. See

Dkt. 96.

Magistrate Judge Strombom denied the motion as follows:

Plaintiff’s failure to attach the specific requests he wishes the Court to review is sufficient

reason to deny his motion to compel. Without the specific requests, the Court cannot make

an informed decision regarding the scope of Plaintiff’s motion nor have Defendants been

given sufficient notice. Based on the papers submitted, the Court might assume that Plaintiff’s

motion is limited to RFP Nos. 7 and 12, however it declines to do so.

Dkt.102 at 2.

Mr. Nash sought reconsideration of the Order Denying Plaintiff’s Motion to Compel (Dkt.

102), contending that the defendants’ response was untimely, contending that the motion was

improperly noted, and clarifying which discovery requests were the subject of his Motion to Compel.

Dkt. 107 at 2. Magistrate Judge Strombom denied the Motion for Reconsideration, holding that the

defendants’ response was timely, that the Motion to Compel was properly noted, and that the

plaintiff failed to offer new facts or legal authority justifying reconsideration. Dkt. 116 at 2. 

II. DISCUSSION

Mr. Nash objects to Magistrate Judge Strombom’s Order Denying Plaintiff’s Motion to

Compel (Dkt. 102) and to the Order Denying Plaintiff’s Motion for Reconsideration (Dkt. 116). Dkt.

118. The plaintiff’s objections are governed by Federal Rule of Civil Procedure 72(a), which

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ORDER 

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provides as follows:

A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party

is referred to hear and determine shall promptly conduct such proceedings as are required and

when appropriate enter into the record a written order setting forth the disposition of the

matter. Within 10 days after being served with a copy of the magistrate judge's order, a party

may serve and file objections to the order; a party may not thereafter assign as error a defect

in the magistrate judge's order to which objection was not timely made. The district judge to

whom the case is assigned shall consider such objections and shall modify or set aside any

portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a).

A. MOTION TO COMPEL

As a threshold matter, the Court notes that Mr. Nash’s objections to the Order Denying

Plaintiff's Motion to Compel (Dkt. 102) are untimely. The Order was filed on March 28, 2007, and

the plaintiff did not file objections thereto until May 24, 2007. 

In addition, Magistrate Judge Strombom properly concluded that Mr. Nash’s motion and

reply were too vague as to the discovery Mr. Nash sought to compel. To the extent that Mr. Nash’s

reply and the declaration attached thereto clarified Mr. Nash’s request, the defendants were deprived

of an opportunity to respond. Courts should not consider arguments and facts presented for the first

time in the reply. See In re Sherman, 441 F.3d 794, 810 n.20 (9th Cir. 2006). Magistrate Judge

Strombom’s denial of the plaintiff’s Motion for the Court to Compel (Dkt. 92) was not clearly

erroneous or contrary to law, and the plaintiff’s objections should therefore be overruled.

B. MOTION FOR RECONSIDERATION

The standard on a motion for reconsideration is high:

Motions for reconsideration are disfavored. The court will ordinarily deny

such motions in the absence of a showing of manifest error in the prior ruling or a

showing of new facts or legal authority which could not have been brought to its attention

earlier with reasonable diligence.

Local Rule CR 7(h)(1). 

1. Manifest Error

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ORDER 

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First, Mr. Nash apparently contends that the Clerk’s re-noting of the plaintiff’s Motion for

the Court to Compel (Dkt. 92) constitutes manifest error. The plaintiff’s motion was filed on

February 9, 2007. Mr. Nash noted his motion for consideration on February 23, 2007. Dkt. 92 at 1.

Under Local Rule 7(d)(3), Mr. Nash’s motion should have been noted for three Fridays after his

motion was filed. Accordingly, the Clerk properly re-noted Mr. Nash’s motion for March 2, 2007.

Second, Mr. Nash contends that Magistrate Judge Strombom erroneously concluded that the

probative value of discovery regarding criminal complaints filed against the defendants is outweighed

by the danger of unfair prejudice and constitutes inadmissible character evidence. Dkt. 116 at 2.

Specifically, Mr. Nash contests the characterization of his claims as “relat[ing] to access to his legal

materials and his ability to have his legal mail processed” because his amended complaint

encompasses claims of conspiracy, retaliation, and harassment. Id; Dkt. 118 at 4. In his Motion for

Reconsideration (Dkt. 107 at 3) and his objections, Mr. Nash fails to articulate how evidence of

criminal complaints or sanctions against the defendants is relevant to his allegations of conspiracy,

retaliation, or harassment, except as character evidence. Mr. Nash similarly fails to acknowledge the

danger of unfair prejudice posed by his discovery requests or demonstrate that the probative value of

the evidence he seeks would outweigh such prejudice. See Fed. R. Evid. 403. 

Finally, Mr. Nash objects to the portion of the Order Denying Plaintiff’s Motion for

Reconsideration addressing Elaine Mortimeyer’s answers to discovery requests. Dkt. 118 at 4.

Magistrate Judge Strombom addressed Mr. Nash’s contention as follows: 

In addition, it appears that Plaintiff received Defendant Mortimeyer’s answers to his

discovery requests, but disagrees with defense counsel as to whether Defendant Mortimeyer’s

signature was required and whether the responses were timely provided. (Dkt. # 91, Exh. 1).

Here again, without the benefit of the particular discovery at issue, the Court is left to guess

at the true dispute and it declines to do so.

Dkt. 116 at 2. Mr. Nash does not articulate his objection to this portion of the Order. See Dkt. 118

at 4. Magistrate Judge Strombom properly concluded that the plaintiff failed to demonstrate manifest

error in a prior ruling.

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ORDER 

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2. New Facts or Legal Authority

Magistrate Judge Strombom concluded that Mr. Nash’s Motion for Reconsideration did not

present any new facts or legal authority justifying reconsideration. Dkt. 116 at 2. While Mr. Nash did

clarify the discovery he sought to compel, this was not information that “could not have been

brought to its attention earlier with reasonable diligence.” See Local Rule CR 7(h). Mr. Nash does

not demonstrate that Magistrate Judge Strombom’s denial of reconsideration on this basis was

clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). 

3. Jurisdiction

Finally, Mr. Nash contends that Magistrate Judge Strombom lacked jurisdiction to rule on the

Motion for Reconsideration because the case was stayed and the stay had not yet been lifted. Dkt.

118 at 6. 

On April 13, 2007, Mr. Nash filed an affidavit that was deemed a Motion for Recusal. Dkt.

110 (affidavit); Dkt. 112 (Order Regarding Plaintiff’s Request for Recusal). Magistrate Judge

Strombom stayed the case as follows: “This action, and all motions currently pending before the

Court are hereby STAYED pending resolution of the recusal issue. No further motions shall be

filed in this matter until the stay is lifted. Any motion filed while the matter is stayed shall not

be considered and shall be dismissed.” Dkt. 112 at 3 (emphasis in original). On April 30, 2007,

Chief Judge Lasnik denied the plaintiff’s request for recusal. Dkt. 115. 

By operation of the order on the plaintiff’s request for recusal, the stay was lifted even

though no formal order lifting the stay was issued. Therefore, the Court declines to hold that

Magistrate Judge Strombom lacked jurisdiction to deny the plaintiff’s Motion for Reconsideration on

May 14, 2007. Accordingly, the plaintiff fails to demonstrate that Magistrate Judge Strombom’s

orders, or any portion thereof, are clearly erroneous or contrary to law.

III. ORDER

Therefore, it is hereby

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ORDER 

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ORDERED that Plaintiffs’ Objection[s] to the Magistrate’s Order Denying Motion for

Reconsideration and Dkt. 102 (Dkt. 118) are OVERRULED, and the Order Denying Plaintiff’s

Motion to Compel (Dkt. 102) and Order Denying Plaintiff’s Motion for Reconsideration (Dkt. 116)

are AFFIRMED. 

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 11th day of June, 2007.

ARobert J. Bryan

United States District Judge 

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