Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

Jackie MOORE, individually and as natural guardian of herminor child, Christopher Case, Plaintiff-Appellant,v.ARMOUR PHARMACEUTICAL COMPANY, Defendant-Appellee.Jackie MOORE, individually and as natural guardian of herminor child, Christopher Case, Johnny Ray Kellarand Margie Kellar, et al., Plaintiffs-Appellants,v.ARMOUR PHARMACEUTICAL COMPANY, Cutter Laboratories, Divisionof Miles, Inc., et al., Defendants-Appellees.Johnny Ray KELLAR and Margie Kellar, individually and as thenatural guardian of their minor child, JohnnyTravis Kellar, Plaintiffs-Appellants,v.CUTTER LABORATORIES, DIVISION OF MILES, INC., and ArmourPharmaceutical Company, Defendants-Appellees.

Nos. 90-15513, 90-15519 and 90-15522.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1991.Decided June 14, 1991.

Before GOODWIN, SKOPIL and CANBY, Circuit Judges.


This is an appeal from a district court's decision to quash a subpoena. Appellants contend that the district court (1) applied an improper standard of review to the magistrate's decision; (2) failed to conclude that its prior ruling was law of the case; and (3) abused its discretion by quashing the subpoena. We reject these contentions and affirm.

A district court may refer a pretrial matter to a magistrate to "hear and determine," and may review the magistrate's order "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b) (1) (A) (1988). Here the court referred the matter to a magistrate to "hear and consider." It is clear to us that the district judge referred this case to the magistrate under section 636(b) (1) (A), and he properly reviewed the magistrate's determinations for clear error. There is no merit to appellants' arguments that the district court should have reviewed the magistrate's decision de novo.

Appellants contend that law of the case precluded the magistrate from reconsidering whether the proposed deposition would unduly burden the agency. The magistrate correctly noted that because the district court quashed the first subpoena on the basis that plaintiffs had not exhausted other discovery sources, the district court's statement that the deposition would unduly burden the agency was dictum. Law of the case doctrine is not applicable to statements of dicta. See Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990).

The district court quashed the subpoena on the grounds that more than 200 similar lawsuits were pending in which the doctor's testimony might be sought, and that the agency had received many Freedom of Information Act requests relating to blood products and AIDS. Appellants argue that such evidence does not support the conclusion that taking the doctor's deposition would unduly burden the agency. We disagree. We conclude that the district court did not abuse its discretion in quashing the subpoena. See Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987) (review is for abuse of discretion); see also Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1198 (11th Cir. 1991) (affirming order quashing subpoena directed to another doctor at same agency).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3