Gerth v. Foster et al

Filing 10

ORDER ADOPTING 8 Magistrate Judge Willet's Report and Recommendation. This action is dismissed without prejudice. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 4/10/17. (SLQ)

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1 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arthur F. Gerth, Plaintiff, 10 11 ORDER v. 12 No. CV-16-02786-PHX-DJH Unknown Foster, et al., 13 Defendants. 14 15 16 This matter is before the Court on the Report and Recommendation (“R&R”) (Doc. 8) of United States Magistrate Judge Eileen S. Willett, filed on March 14, 2017. 17 As more fully set forth therein, pursuant to Fed.R.Civ.P. 41(b), Judge Willet recommends 18 dismissal of this action without prejudice for failure to prosecute given that in violation of 19 LRCiv 83.3(d), Plaintiff failed to notify the Court of his change of address. 20 In so recommending, Judge Willet explicitly advised the parties that they “shall 21 have fourteen days from the date of service of a copy of this [R&R] within which to file 22 specific written objections with the Court.” (Doc. 8 at 3:23-25). Judge Willet further 23 explicitly advised that “[f]ailure to file timely objections to the any factual determinations 24 of the Magistrate Judge may be considered a waiver of a party’s right to appellate review 25 of the findings of fact in an order or judgment entered pursuant to the” R&R. (Id. at 26 3:26-4:2) (citation omitted). 27 28 In accordance with the foregoing, the parties had until March 31, 2017 by which to timely file objections to the R&R. The parties did not do so. Absent any timely 1 objections, the Court is not required to review the findings and recommendations in the 2 R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the 3 Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 4 review at all . . . of any issue that is not the subject of an objection.”); United States v. 5 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); Fed.R.Civ.P. 72(b)(3) (“The 6 district judge must determine de novo any part of the magistrate judge’s disposition that 7 has been properly objected to.”). Nonetheless, the Court has reviewed the R&R and 8 agrees with its findings and recommendation. The Court will, therefore, accept the R&R 9 in its entirety. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or 10 modify, in whole or in part, the findings or recommendations made by the magistrate 11 judge.”); Fed.R.Civ.P. 72(b)(3) (same). 12 Accordingly, 13 IT IS ORDERED that Magistrate Judge Willet’s R&R (Doc. 8) is accepted and 14 15 16 17 18 19 adopted as an Order of this Court. IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 41(b), this action is dismissed without prejudice. IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Dated this 10th day of April, 2017. 20 21 22 23 Honorable Diane J. Humetewa United States District Judge 24 25 26 27 28 -2-

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