May the District Court Consider New Evidence when Reviewing De Novo a Magistrate Judge’s Findings and Recommendation? — Circuit Split — Even If It May, Doing So Is Discretionary

B&K Livestock Auction, Inc. v. Or. Dep’t of Envtl. Quality, 2013 U.S. Dist. LEXIS 107254 (D. Or. July 31, 2013):

Plaintiff raised new arguments in its objections to the Findings and Recommendation. Defendants argue that this Court should exercise its discretion and decline to consider Plaintiff's new arguments. The Magistrate's Act permits the court to "receive further evidence" at its discretion. 28 U.S.C. § 636(b)(1); see also United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (discussing the Circuit split on whether a district court must or may consider new evidence when reviewing de novo a magistrate judge's findings and recommendation, and concluding that a district "has discretion, but is not required" to consider new evidence). Here, Plaintiff offers no explanation for why its new arguments were not raised before Judge Papak, and the Court exercises its discretion not to consider the new arguments.

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