Ok, ok, I know. No one cares about standards of review. I know. But this is interesting!
Today Judge Andrews ruled on objections to a R&R recommending that the Court deny a motion to dismiss a breach-of-contract claim, and grant a motion to dismiss a trade secret claim, without prejudice.
So far, nothing out of the ordinary. But the interesting part is the standards of review applied.
In reviewing the magistrate judge's recommendation to deny the motion to dismiss on the breach of contract claim, the Court applied the ordinary de novo review standard for dispositive matters under FRCP 72(b).
The defendant, however, also objected to the magistrate judge's decision to dismiss the trade secret claim without prejudice. The Court reviewed that determination on an abuse of discretion standard, applying FRCP 72(a).
Why is this notable? First, the motion itself was a dispositive motion, and a plain reading of FRCP 72 suggests that the easier de novo review standard applies to R&Rs on any dispositive motions. But here the Court was willing to split up the issues and apply a heavier standard of review to the portion of the R&R that was not dispositive.
Second, the Court split up the review on its own, without the parties asking. As far as I see, the parties agreed in the briefs that a de novo standard applied.
Third, it's interesting to think about what would have happened if the magistrate judge had granted the motion with prejudice instead of without. Clearly, then, it would be a dispositive motion, and it would be reviewed de novo rather than on an abuse of discretion standard.
So, all in all, this is something to keep in mind if you are considering whether to object to an R&R solely on the basis that it granted a motion to dismiss "without prejudice"—it may be even more difficult than you think.
Yes, it was a slow news week for us. Why do you ask?
There were actually a number of other opinions and orders issued this week, including in two cases set for trial next month. My co-bloggers and I didn't cover them in part because we're involved in those cases. But I didn't want to let them pass totally unmentioned.
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