Batterham v. Mono County Law Enforcement et al

Filing 38

ORDER adopting 33 FINDINGS AND RECOMMENDATIONS in full, except as they apply to the Town of Mammoth Lakes signed by Judge Garland E. Burrell, Jr on 9/7/12: Defendant Hornbeck's motion to dismiss 20 is granted. Defendant Mono County Sherif f's Department's motion to dismiss 21 is granted. Plaintiff's second amended complaint is dismissed as to all defendants but the Town of Mammoth Lakes without leave to amend, as provided in the magistrate judge's findings and recommendations. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARA BATTERHAM,

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Plaintiff,

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No. 2:11-cv-1118 GEB EFB PS

vs.
MONO COUNTY LAW
ENFORCEMENT, et al.,

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Defendants.

ORDER

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__________________________________/
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On June 19, 2012, the magistrate judge filed findings and recommendations

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herein which were served on the parties and which contained notice that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff filed objections on

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July 2, 2012, and they were considered by the undersigned.

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This court reviews de novo those portions of the proposed findings of fact to

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which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v.

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Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920

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(1982). As to any portion of the proposed findings of fact to which no objection has been made,

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the court assumes its correctness and decides the motions on the applicable law. See Orand v.

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United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
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reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.

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1983).

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The court has reviewed the applicable legal standards and, good cause appearing,

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concludes that it is appropriate to adopt the proposed Findings and Recommendations in full.

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However, the court notes that on July 6, 2012, attorney Scott Grossberg filed a declaration

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indicating that defendant the Town of Mammoth Lakes filed a Voluntary Petition for Bankruptcy

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under Chapter 9 on July 3, 2012, and that as a result, this entire action is stayed. Dckt. No. 35.

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As indicated by the assigned magistrate judge, pursuant to 11 U.S.C. § 362, the filing of the

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bankruptcy petition operates as a stay of this action against the Town of Mammoth Lakes

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pending resolution of the Town of Mammoth Lakes’ bankruptcy petition, case number

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2012-32463, filed July 3, 2012, in the United States Bankruptcy Court for the Eastern District of

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California, but the bankruptcy filing does not stay the action against the other defendants.1 See

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Dckt. No. 37 (citing 11 U.S.C. § 901(a); Ingersoll–Rand Financial Corp. v. Miller Mining Co.

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Inc., 817 F.2d 1424, 1427 (9th Cir. 1987); and Parker v. Bain, 68 F.3d 1131, 1137 (9th Cir.

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1995)). Therefore, in light of the stay as to the Town of Mammoth Lakes, the findings and

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recommendations will be adopted as to all defendants except the Town of Mammoth Lakes.

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Once the bankruptcy stay has been lifted, the court will consider the findings and

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recommendations, as they apply to the Town of Mammoth Lakes.

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Accordingly, IT IS ORDERED that:

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1. The proposed Findings and Recommendations filed June 19, 2012, are

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ADOPTED in full, except as they apply to the Town of Mammoth Lakes;

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2. Defendant Hornbeck’s motion to dismiss, Dckt. No. 20, is granted;

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The magistrate judge further provided that “[i]f any party opines that the remainder of this
action and/or the action against one or more of the other defendants is or should be stayed pending
resolution of the Town of Mammoth Lakes’ bankruptcy petition, that party shall so indicate in
writing on or before August 10, 2012.” Dckt. No. 37 at 3. None of the parties filed such a
notification.

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3. Defendant Mono County Sheriff’s Department’s motion to dismiss, Dckt. No.
21, is granted; and
4. Plaintiff’s second amended complaint is dismissed as to all defendants but the

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Town of Mammoth Lakes without leave to amend, as provided in the magistrate judge’s findings

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and recommendations.

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Dated: September 7, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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