Gerth v. Foster et al
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Arthur F. Gerth,
Unknown Foster, et al.,
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.
As more fully set forth therein, pursuant to Fed.R.Civ.P. 41(b), Judge Willet recommends
dismissal of this action without prejudice for failure to prosecute given that in violation of
LRCiv 83.3(d), Plaintiff failed to notify the Court of his change of address.
In so recommending, Judge Willet explicitly advised the parties that they “shall
have fourteen days from the date of service of a copy of this [R&R] within which to file
specific written objections with the Court.” (Doc. 8 at 3:23-25). Judge Willet further
explicitly advised that “[f]ailure to file timely objections to the any factual determinations
of the Magistrate Judge may be considered a waiver of a party’s right to appellate review
of the findings of fact in an order or judgment entered pursuant to the” R&R. (Id. at
3:26-4:2) (citation omitted).
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
objections, the Court is not required to review the findings and recommendations in the
R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the
Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any
review at all . . . of any issue that is not the subject of an objection.”); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); 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.”). Nonetheless, the Court has reviewed the R&R and
agrees with its findings and recommendation. The Court will, therefore, accept the R&R
in its entirety. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.”); Fed.R.Civ.P. 72(b)(3) (same).
IT IS ORDERED that Magistrate Judge Willet’s R&R (Doc. 8) is accepted and
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.
Honorable Diane J. Humetewa
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?