Mills v. Intermountain Gas Company et al

Filing 85

ORDER ADOPTING REPORT AND RECOMMENDATIONS 84 Report and Recommendations. ; granting 40 Motion for Summary Judgment; granting 42 Motion for Summary Judgment;. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN MILLS,
Case No. 1:10-CV-00290-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
INTERMOUNTAIN GAS COMPANY,
an Idaho Corporation, MDU
RESOURCES GROUP, INC., a publicly
traded company; and UNITED
ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES
AND CANADA LOCAL 296,
Defendants.

On February 24, 2012, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (Docket No. 84) in this matter. Pursuant to 28 U.S.C. §
636(b)(1), the parties had until March 9, 2012 in which to file written objections to the
Report and Recommendation. No objections were filed by the parties.

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Moreover, this Court “shall make a de novo determination of those portions of the report
which objection is made.” Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). In this case, no
objections were filed so the Court need not conduct a de novo determination of the Report
and Recommendation.

The Court did, however, review the Report and

Recommendation and the record in this matter and finds the Report and Recommendation
to be well-founded in the law based on the facts of this particular case.
THEREFORE, IT IS HEREBY ORDERED that the Report and
Recommendation (Docket No. 84) shall be INCORPORATED by reference and
ADOPTED in its entirety.

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

IT IS THEREFORE ORDERED:
1)

Motion for Summary Judgment of Defendant United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada Local 296 of Boise (Docket No. 42) shall be
GRANTED; and

2)

Motion for Summary Judgment of Defendants Intermountain Gas Company
and MDU Resources Group, Inc., (Docket No. 40) shall be GRANTED.

3)

Plaintiff Mills’ claims for violation of the Fair Labor Standards Act, 29
U.S.C. §§ 201 et. seq. and the Idaho Wage Claim Act, Idaho code §§ 45601, et. seq. for unpaid regluar and overtime wages remain. The trial for
these remaining claims shall be set for July 10, 2012.
A)

Motions in limine, if any, shall be filed thirty (30) days prior to trial.
Response to motions in limine, if any, shall be filed within fourteen
(14) days from the filing of the motion.

B)

Witness Lists: Witness lists shall be filed fourteen (14) days prior
to trial, unless otherwise ordered or agreed upon. Witness lists shall
contain the material listed in Fed. R. Civ. P. 26(a)(3)(A)&(B), and
shall include a brief description of the subject matter of the
witnesses' expected testimony.

C)

Exhibits and Exhibit Lists: Exhibit list shall be exchanged
between the parties and submitted to the Court within fourteen (14)
days prior to trial. The exhibit lists shall follow the guidelines set
out in Local Rule 16.3. Plaintiff's Exhibits should be numbered and
listed starting with "1." Defendant shall contact Ms. Anne Lawron,
In-court Deputy, 334-9022, to receive their exhibit numbers. If

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

either side has multiple parties or numerous exhibits, contact Ms.
Lawron for number assignments. Each exhibit should be labeled
with a color-coded sticker. (Yellow for plaintiff; blue for defendant.
Stickers are available at the Clerk's Office, US courthouse.) The
number of the exhibit and number of the case should be on all
exhibits. A copy of the exhibits should be delivered to opposing
counsel. A set of originally marked exhibits and a copy of the exhibit
list shall also be delivered to Ms. Lawron on the day of trial, along
with two complete sets of exhibit copies and exhibit lists for use of
the Court and staff attorney. Impeachment exhibits will be marked,
sealed and delivered only to the Court. Except for good cause
shown, no exhibits or testimony will be received in evidence at trial
unless presented in accordance with this order.
D)

Pre-Trial Briefs: Trial briefs shall be exchanged between the
parties and submitted to the Court within fourteen (14) days prior to
trial. The Court is to be advised and briefed on all anticipated
evidentiary problems before trial; no motions will be heard on the
morning of a trial unless approved by the court in advance.

E)

Jury Instructions: All proposed jury instructions are required to be
filed and served at least fourteen (14) days prior to trial. The
proposed jury instructions shall follow the guidelines set forth in
Local Rule 51.1. Proposed jury instructions shall also be provided to
chambers by sending a Aclean@ set without cites or numbers, in a
Wordperfect compatible document, to [e-mail].

F)

Proposed Voir Dire: All proposed voir dire questions are to be
filed at least fourteen (14) days prior to trial. The Court will conduct
voir dire of the jury panel. Counsel will be allowed to briefly
question the jury panel following the Court's voir dire.

ORDER ADOPTING REPORT AND RECOMMENDATION - 4

G)

Trial Times: The jury trial shall begin on July 10, 2012 at 9:30 a.m.
in the Federal Courthouse in Boise, Idaho.1 The trial is tentatively
scheduled for four days. Thereafter, the trial shall be conducted from
9:00 a.m. to 4:00 p.m. A continuance for reason will be granted only
upon a showing of extraordinary circumstances.
DATED: March 12, 2012

Honorable Edward J. Lodge
U. S. District Judge

1

The parties are further advised that criminal matters may also be set on that date, which
would supersede all civil settings; however, civil matters would commence in the order set
at the conclusion of any criminal proceedings, if time allows.
ORDER ADOPTING REPORT AND RECOMMENDATION - 5