Wardlow v. Ralphs Moving and Storage

Filing 34

ORDER adopting Report and Recommendations re 29 Report and Recommendations.; granting 25 Motion for Judgment on the Pleadings; Denied as moot 25 Motion for Summary Judgment. The Clerk of the Court shall enter Judgment accordingly.. Signed by Judge David C Bury on 6/15/2012.(JKM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
Mark E. Wardlow,

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Plaintiff,
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v.
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Ralph’s Moving & Storage,
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Defendant,
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_______________________________________)

CV 10-538 TUC DCB (HCE)
ORDER

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The Court adopts the Report and Recommendation (R&R) filed on February 7, 2012, by

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Magistrate Judge Hector C. Estrada, as the opinion of the Court and summarily grants the

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Defendant’s Motion for Judgment on the Pleadings, pursuant to Rule 7.2(i) of the Local Rules
of Practice of the United States District Court for the District of Arizona (Local Rule), and
denies the alternative Motion for Summary Judgment as moot.
After the R&R was prepared by the magistrate judge recommending summary

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disposition of the Defendant’s motion, the Court realized that the R&R had been mailed to the
Plaintiff at the wrong address. The certificate of mailing on the Defendant’s motion also
reflected the wrong address for the Plaintiff. The Plaintiff had timely filed a Notice of Change
of Address and, therefore, the mistake in addresses was not due to his error or any failure on his
part.

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On March 30, 2012, the Court gave Plaintiff one more chance to file a Response to the
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Defendant’s dispositive motion. The Court re-sent the R&R to the Plaintiff at the correct
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address. The Court ordered the Defendant to resend the motion to the Plaintiff at the correct
address. The Court gave the Plaintiff 30 days from the date of receipt of the dispositive motion
to file a Response. The Court gave Plaintiff what is commonly referred to as a Rand/Wyatt

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Notice, telling him that the dispositive motion seeks to have the case dismissed and that if

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granted it would end the case. The Rand/Wyatt notice informed the Plaintiff that failure to file

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a Response would result in summary granting of the Defendant’s dispositive motion and

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dismissal of the case.

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On May 8, 2012, the Defendant filed a Notice of Service with the Court, which reflects

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the Defendant mailed a copy of the dispositive motion to the Plaintiff on April 26, 2012.

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Plaintiff has not filed a Response to the Motion for Judgment on the Pleadings/Alternatively,

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Motion for Summary Judgment. The Court, therefore, reviews the R&R.

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STANDARD OF REVIEW

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The duties of the district court, when reviewing a Report and Recommendation of a

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Magistrate Judge, are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C.

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§ 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1).

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When the parties object to a Report and Recommendation (R&R), “‘[a] judge of the [district]

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court shall make a de novo determination of those portions of the [R&R] to which objection is

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made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When
no objections are filed, the district court does not need to review the R&R de novo. Wang v.
Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121-22 (9th Cir.2003) (en banc).
On March 30, 2012, the Court ordered the R&R to be sent to the Plaintiff at the correct
address. The R&R instructed the parties that they had 14 days to file written objections and that
failure to file an objection may be deemed a waiver of the party’s right to de novo review of the
issues. (R&R at 4 (citations omitted). Additionally, Plaintiff was given an extension of time
to file a Response to Defendant’s dispositive motion, which as noted above he has filed to do.

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REPORT AND RECOMMENDATION
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The Honorable Hector C. Estrada considered the merits of Defendant’s dispositive
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motion, which was that Plaintiff failed to state a claim of discrimination under Title VII of the
Age Discrimination in Employment Act (ADEA). Specifically, Defendant challenged the

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Plaintiff’s failure to allege he was within the class of individuals protected by the ADEA or that

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he was qualified to be promoted. A prima facie case of discrimination under the ADEA

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requires a showing that the plaintiff is at least 40 years old; performing his job satisfactorily;

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discharged, and replaced by a substantially younger employee of equal or inferior qualifications.

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Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207-08 (9th Cir. 2008).

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The Magistrate Judge and this Court considers the merits of the Defendant’s motion

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within the context of Rule 7.2(i). The Court considers four factors: 1) the public's interest in

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expeditious resolution of litigation; 2) the court's need to manage its docket; 3) the risk of

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prejudice to the defendants; 4) the public policy favoring disposition of cases on their merits;

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and 5) the availability of less drastic sanctions. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

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1995) (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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In light of these considerations, and because the Motion to for Judgment on the Pleadings

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states a basis for dismissal, the Court believes that summary dismissal of the Complaint is

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warranted pursuant to Local Rule 7.2(i).

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Where as here there are no objections to a R&R and review has been waived, the Court
nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449,
455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily
waive question of law, but is a factor in considering the propriety of finding waiver)). The
Court finds the R&R to be thorough and well-reasoned, without any clear error in law or fact.
United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989). The Court accepts and adopts
the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated
in the R&R, the Court finds a basis for summary dismissal of Plaintiff’s Complaint. The Court

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grants the Defendant’s Motion for Judgment on the Pleadings and finds the alternative Motion
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for Summary Judgment moot.
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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. # 29) is adopted as the
opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Judgment on the Pleadings (Doc. 25)
is GRANTED and the Motion for Summary Judgment (Doc. 25) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
DATED this 15th day of June, 2012.

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