Barclay v. Fuller

Filing 34

REPORT AND RECOMMENDATION re 3 MOTION for Preliminary Injunction filed by Timothy Barclay, 16 MOTION for Summary Judgment filed by Timothy Barclay, 20 MOTION for Hearing filed by Timothy Barclay, 19 MOTION for Oral Argument filed by Timothy B arclay, 13 MOTION for Summary Judgment filed by Marcus M. Fuller. Magistrate Judge Recommends DENYING MOTIONS. Objections to R&R due by 4/9/2012 ; Reply to Objections to R&R due by 4/16/2012. Signed by Judge John D. Roberts on 4/4/12. (CLW, COURT STAFF) =

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

TIMOTHY R. BARCLAY,
Plaintiff,
vs.
MARCUS M. FULLER, In Personam,
and NISAH ex-SARAH NICOLE,
Official No. 589077, and its engines,
tackle, gear, equipment and
appurtenances, In Rem,
Defendants.

3:11-cv-00169-TMB-JDR
RECOMMENDATION
REGARDING
MOTION FOR PRELIMINARY
INJUNCTION [3], MOTION FOR
SUMMARY JUDGMENT [13],
CROSS-MOTION FOR SUMMARY
JUDGMENT [16], REQUEST FOR
ORAL ARGUMENT [19] and
REQUEST FOR ORAL
ARGUMENT [20]
(Docket Nos. 3, 13, 16, 19 & 20)

The Court has before it numerous motions. Plaintiff, Mr. Barclay, filed
the Motion at Docket 3 requesting the Court issue a preliminary injunction preventing
the Defendant from using the Vessel. At Docket 13, the Defendant, Mr. Fuller, filed
a Motion for Summary Judgment. At Docket 16, Mr. Barclay filed a Cross-Motion for
Summary Judgment. At Docket 19 Plaintiff filed a Request for Oral Argument,

3:11-cv-00169-TMB-JDR

1 of 3; 04/04/12
Recommendation Regarding Motion for Preliminary Injunction [3],
Motion for Summary Judgment [13], Cross-Motion for Summary Judgment [16],
Request for Oral Argument [19] and Request for Oral Argument [20] signed by Judge John D. Roberts

presumably regarding his Cross-Motion for Summary Judgment. And, at Docket 20,
Plaintiff again filed a request for oral argument on both parties Motions for Summary
Judgment.
The Motions identified above were filed with the Court prior to the Status
Hearing held on February 16, 2012. The Court determined that it was necessary to
address the jurisdiction of the Court prior to considering the above-named motions.
The parties were directed to brief the jurisdictional issue. As part of that briefing,
Plaintiff moved the Court to Amend the Complaint at Docket 29. The Court granted
Plaintiff’s Motion to Amend the Complaint at Docket 31 and the Amended Complaint
was filed at Docket 32.
In light of the filing of the Amended Complaint and the pending
jurisdictional matter, the Magistrate Judge recommends the Court Deny the Motions
cited in the caption above without prejudice.
IT IS SO RECOMMENDED.
DATED this

4th

day of April, 2012, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

Pursuant to Rule 59(b)(3), Federal Rules of Criminal Procedure, any
objections will be considered by the District Court Judge who will accept, reject,

3-11-cv-00169-TMB-JDR Recommendation @ 3, 13, 16, 19 & 20 to Deny Without Prejudice FINAL_mtd.wpd

3:11-cv-00169-TMB-JDR

2

2 of 3; 04/04/12
Recommendation Regarding Motion for Preliminary Injunction [3],
Motion for Summary Judgment [13], Cross-Motion for Summary Judgment [16],
Request for Oral Argument [19] and Request for Oral Argument [20] signed by Judge John D. Roberts

or modify the recommendation, or resubmit the matter to the Magistrate Judge for
additional consideration and recommendation. Failure to object in accordance with
this rule waives a party's right to review.
Objections to this report and recommendation shall be served and filed
no later than CLOSE OF BUSINESS, Monday, April 9, 2012. Responses to
objections are due by CLOSE OF BUSINESS, on Monday, April 16, 2012.
Objections and responses shall not exceed 5 pages in length, and shall not merely
reargue positions presented in motion papers. Rather, objections and responses
shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support.

3-11-cv-00169-TMB-JDR Recommendation @ 3, 13, 16, 19 & 20 to Deny Without Prejudice FINAL_mtd.wpd

3:11-cv-00169-TMB-JDR

3

3 of 3; 04/04/12
Recommendation Regarding Motion for Preliminary Injunction [3],
Motion for Summary Judgment [13], Cross-Motion for Summary Judgment [16],
Request for Oral Argument [19] and Request for Oral Argument [20] signed by Judge John D. Roberts