EDVA OPINION WATCH: Judge Smith Sustains Limited Objection to Report and Recommendation

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I've been asked by clients before whether it is worth the time and effort to file objections to a Report and Recommendation ("R&R") prepared by a Magistrate Judge and have the issue reconsidered by the District Court Judge.  Of course, under Rule 72(b) the consideration by the District Judge is de novo.  But as a practicable matter, do the district judges in this District ever overturn a Report and Recommendation?

The answer is yes.  One day in the future we hope to provide you a detailed data-driven answer looking at a year's worth of cases, but for now you should consider Epps v. Scaffolding Solutions, LLC, Case No. 2:17cv562, Docket 96 as anecdotal support.  The case is a Fair Labor Standards Act collective action in which twenty plaintiffs allege underpayment for certain time worked, including uncompensated travel time.

On April 2, 2019, Magistrate Judge Douglas Miller prepared a 39-page Report and Recommendation (R&R) proposing partial summary judgment in favor of both Plaintiffs and Defendant on certain issues.  On June 6, 2019, Judge Smith issued an order describing that R&R as "thorough and well-reasoned," but modified certain language from the R&R after determining that a factual finding regarding travel by the Plaintiffs to Connecticut was unsupported by the record.

The change to the R&R does not appear to be dispositive, but it does reinforce that the District Court judges in this Division take de novo review seriously.  A party that believes an R&R to be incorrectly decided should file appropriate objections.

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