Commercial Litigation and Arbitration

May a District Court, in De Novo Review of a Magistrate Judge’s Report and Recommendation, Consider New Evidence Not Proffered to the Magistrate Judge? Circuit Split

Muhammad v. Close, 798 F. Supp. 2d 869 (E.D. Mich. 2011) (reviewing summary judgment R&R):

The Magistrate Judge Act, 28 U.S.C. § 636 et seq., requires a reviewing district court judge to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

The circuits currently are split on whether a district court is obligated to consider additional evidence presented after the magistrate judge has issued his or her report and recommendation. As the court of appeals noted, this Circuit has not directly considered this issue, although it has looked unfavorably on parties who raise new issues and arguments after the magistrate judge has issued a report to the district judge. See Muhammad v. Close, No. 08-1944, 2009 U.S. App. LEXIS 29556, slip. op. (6th Cir. Apr. 20, 2009); see also Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). Other circuits have found that the statute permits a district court to accept and consider additional evidence on its de novo review. Addressing an analogous issue, the Second Circuit found that prior versions of 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b) authorized district courts to accept supplemental evidence. Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (citing Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 3070.2, at 378). The First, Fifth, and Ninth Circuits align with the Second Circuit in permitting, but not requiring, a district court to consider evidence first filed with the party's objections. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000); Freeman v. County of Bexar, 142 F.3d 848, 850-53 (5th Cir. 1998); Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); see also Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004) ("[G]iven the circumstances under which this evidence was offered — a pro se plaintiff, ignorant of the law, offering crucial facts as soon as he understood what was necessary to prevent summary judgment against him — it would have been an abuse of discretion for the district court not to consider the evidence."). The Fourth Circuit has gone a step further to require a reviewing district court to consider such evidence. United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) ("The district court cannot artificially limit the scope of its review by resort to ordinary prudential rules, such as waiver, provided that proper objection to the magistrate's proposed finding or conclusion has been made and the appellant's right to de novo review by the district court thereby established.").

This Court concludes that the Sixth Circuit's reference to Howell and Freeman in its recent opinion in this case signals its alignment with the First, Second, Fifth, and Ninth Circuits on this issue. The Court concludes, therefore, that district courts have discretion to consider evidence first presented after a magistrate judge files a report, provided the evidence is furnished by the time objections to the report and recommendation are due. Because the defendant concedes that the Court should consider the Coxton affidavit, the affidavit was submitted with the plaintiff's timely objections to the magistrate judge's report and recommendation, and there is no evidence that the delay in furnishing the affidavit was an abuse of the process, the Court believes it is appropriate to consider this affidavit when deciding the motion for summary judgment.

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