Bustamante v. Gonzales et al

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATIONS 85 and granting 81 Motion to Set Aside default entered against Defendant Maish. Defendant Maish shall file an answer or otherwise respond to the second amended complaint on or before 6/30/09. Signed by Judge David G Campbell on 6/17/09. (LSP)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Hector Gonzales, et al., Defendants. Daniel M. Bustamante, Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV07-940-PHX-DGC (JRI) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Pending before the Court is Defendant Maish's motion to set aside entry of default and United States Magistrate Judge Irwin's Report and Recommendation ("R&R"). Dkt. ##81, 85. The R&R recommends that the default entered against Defendant Maish on April 14, 2009 (Dkt. #80) be set aside and that Defendant Maish have ten days from entry of this order to file an answer or otherwise respond to the second amended complaint. The Magistrate Judge advised the parties that they had ten days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. Id. at 3-4 (citing Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court will accept the R&R and set aside the default entered against Defendant Maish on April 14, 2009 (Dkt. #80). See 28 U.S.C. 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). IT IS ORDERED: 1. 2. set aside. 3. Defendant Maish shall file an answer or otherwise respond to the second Magistrate Judge Irwin's R&R (Dkt. #85) is accepted. The default entered against Defendant Maish on April 14, 2009 (Dkt. #80) is amended complaint (Dkt. #54) on or before June 30, 2009. DATED this 17th day of June, 2009. -2-

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