Sweetwood v. United States of America

Filing 49

ORDER (1) Adopting Report & Recommendation (Doc. 40 ), (2) Granting Motion For Terminating Sanctions (Doc. 36 ) And (3) Entering Default Judgment Against Charles R. McHaffie: The Court adopts the Report (Doc. 40 ) in its entirety. The Court grants the motion for sanctions (Doc. 36 ) and orders that default judgment be entered against Counter Defendant Charles R. McHaffie. Signed by Judge Thomas J. Whelan on 4/2/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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GARY R. SWEETWOOD,

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CASE NO. 10-CV-2189 W (AJB)
Plaintiff,

v.

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UNITED STATES OF AMERICA,

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Defendant.

ORDER (1) ADOPTING REPORT
& RECOMMENDATION
(DOC. 40), (2) GRANTING
MOTION FOR TERMINATING
SANCTIONS (DOC. 36) AND
(3) ENTERING DEFAULT
JUDGMENT AGAINST CHARLES
R. McHAFFIE

On January 11, 2012, Counter Claimant United States of America filed a motion

17 for terminating sanctions against Counter Defendant Charles R. McHaffie. (See Doc.
18 36.) On February 6, 2012, Magistrate Judge Mitchell D. Dembin issued a Report and
19 Recommendation (“Report”), recommending that the Court grant the motion and
20 enter default judgment against McHaffie. (See Doc. 40.) The Report also ordered that
21 any objections were to be filed by February 29, 2012, and any reply filed on March 12,
22 2012. To date, no objection has been filed, nor has there been a request for additional
23 time in which to file an objection.
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A district court’s duties concerning a magistrate judge’s report and

25 recommendation and a respondent’s objections thereto are set forth in Rule 8(b) of the
26 Rules Governing Section 2254 Cases in the United States District Courts. See Mayle
27 v. Felix, 545 U.S. 644, 654 (2005) (Acknowledging that a “discrete set of Rules governs
28 federal habeas proceedings launched by state prisoners.”) Rule 8(b) provides that a
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10cv2189w

1 district judge “must determine de novo any proposed finding or recommendation to
2 which objection is made.” In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
3 Cir. 2003), the Ninth Circuit interpreted identical language in 28 U.S.C. 636(b)(1)(c)
4 as making clear that “the district judge must review the magistrate judge’s findings and
5 recommendations de novo if objection is made, but not otherwise.” (emphasis in
6 original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)(“Of
7 course, de novo review of a R & R is only required when an objection is made to the
8 R & R.”)(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino,
9 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review
10 because neither party filed objections to the Report despite the opportunity to do so,
11 “accordingly, the Court will adopt the Report and Recommendation in its entirety.”);
12 see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).
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In light of McHaffie’s failure to file any objections, as well as his apparent

14 concession that default could and should be entered against him for repeated failures
15 to comply with court orders and his discovery obligations (see Doc. 40 at 3:12–4:1,
16 5:20–6:5), the Court accepts Judge Dembin’s recommendation, and ADOPTS the
17 Report (Doc. 40) in its entirety. For the reasons stated in the Report, which is
18 incorporated herein by reference, the Court GRANTS the motion for sanctions
19 (Doc. 36) and ORDERS that default judgment be entered against Counter Defendant
20 Charles R. McHaffie.
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IT IS SO ORDERED.

23 DATED: April 2, 2012
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Hon. Thomas J. Whelan
United States District Judge

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