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To Lawyers, “R&R” Doesn’t Only Refer to Rest and Relaxation

11/12/2020
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The Norfolk and Newport News divisions are blessed with three experienced and able magistrate judges.  The judicial office of magistrate judge was created by statute in 1968—more accurately, the position was created in 1968, but the title Magistrate Judge came from the Judicial Improvements Act of 1990.[1]  28 U.S. Code § 636(b)(1)(a) provides that a magistrate judge may “hear and determine any pretrial matter” with a few limited exceptions such as a motion for summary judgment, motion to dismiss for failure to state a claim, and a few other key or dispositive issues.  But under subsection (b), a magistrate judge can be referred those excepted motions to submit “proposed findings of fact and recommendations” for the disposition of those motions.  Federal Rule of Civil Procedure 72 contains similar language.  These proposed findings are often referred to as a Report and Recommendation (“R&R”).

A 2019 report by the U.S. judiciary found that magistrate judges throughout the country issued 16,200 R&Rs for dispositive motions in non-social security and non-prisoner civil litigation during a 12-month period.[2]  This was in addition to R&Rs in 4,410 Social Security appeals and more than 25,000 R&Rs in prisoner litigation.

How often are the magistrate judges of this division issuing R&Rs and on what issues?  In an attempt to answer this question, we undertook a search of the dockets in the Norfolk and Newport News division for civil cases filed in 2019.  Searching for both “Report and Recommendation” and “Report and Recommendations” we identified 118 dockets containing that term.  Of those, the “Nature of Suit” entry indicated 23 were Social Security Appeals and 80 were designated as prisoner actions.

Only 15 other civil cases contained a docket entry for a Report and Recommendation.  What type of motions were referred for an R&R?  And how frequent were objections filed to the findings in the R&R?  And did an objection ever succeed?

As it turns out, only 14 of the 15 civil cases were actually referred for an R&R.  In Larsen v. AR Resources, Inc. 4:19cv41, the referral was made in error.  In the remaining 14 cases, nine of them were Rule 12 Motions to Dismiss.  There were also two cases in which a magistrate judge issued an R&R addressing whether to approve a settlement.  In the remaining three cases, the motion considered was a Motion for Summary Judgment.

An R&R is subject to de novo review on any issues to which an objection is raised by a party.  In 10 of the 14 cases, objections were filed.  One of the objections is still pending, but in the other nine cases the objections were overruled, and the R&R was adopted in full.  But that is probably unsurprising—one would expect a rejection of an R&R to be rare.  After all, the reversal rate on appeal in cases is less than 10%, and there is no reason to think overturning an R&R would be more likely.[3]

But perhaps the most interesting facet of all 14 cases in which an R&R was issued is the identity of the referring district judge.  In all the cases reviewed, the presiding judge was the Honorable Rebecca Beach Smith.  That has not always been the case in previous years[4], but it is surprising for this set of 2019 cases.  It does suggest the judges use the R&R process differently.

Regardless of which of the Division’s judges is considering a dispositive issue, parties will receive a reasoned decision in this Division.  But R&Rs by the magistrate judges are relatively rare in the Division, and a successful objection to an R&R is even rarer.


[1] Federal Judicial Center, Magistrate Judges, https://www.fjc.gov/history/judges/magistrate-judgeships.

[2] U.S. Courts, Table S-17—U.S. District Courts–U.S. Magistrate Judges Judicial Business (September 30, 2019), https://www.uscourts.gov/statistics/table/s-17/judicial-business/2019/09/30.

[3] Barry Edwards, Why Appeals Courts Rarely Reverse Lower Courts: An Experimental Study to Explore Affirmation Bias (2019), Emory Law Journal, https://law.emory.edu/elj/_documents/volumes/68/online/edwards.pdf.

[4] See e.g., Ramsay v. Sanibel & Lancaster Insurance, LLC et al., 2:11cv207 (Judge Davis presiding); Masterson v. Commonwealth Bankshares, 2:13cv62 (Judge Davis presiding);, Jth Tax, Inc. Et Al v. Aime Et Al, 2:16cv279 (Judge Morgan presiding); Martin Et Al V. International Longshoremen’s Association, Local 1248, 2:17cv175 (Judge Jackson presiding).

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