Burton et al v. Countrywide Bank FSB et al

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATIONS 54 Report and Recommendations ; denying as moot 38 Motion for In Rem proceeding; granting in part 18 Motion to Dismiss; Plaintiffs Amended Complaint (Dkt. 10) is DISMISSED IN ITS ENTIRETY WITHOUT PR EJUDICE as to all claims except Plaintiffs First and Second Causes of Action, Breach of Fiduciary Duty, and Fourth Cause of Action in part, as set forth in the Report and Recommendation. Plaintiffs shall file a Second Amended Complaint in accordanc e with the limitations and direction in the Report and Recommendation. The Second Amended Complaint shall set forth their remaining claims with thirty (30) days from the date of this Order. Plaintiffs failure to file a Second Amended Complaint within thirty (30) days will result in a termination of this action as to all claims. 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

BRENDA BURTON, et al.,
Case No. 1:10-CV-00298-EJL-LMB
Plaintiffs,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
COUNTRYWIDE BANK, FSB, et al,
Defendants.

On March 1, 2012, United States Magistrate Judge Larry M. Boyle issued a Report
and Recommendation (Dkt. 54) in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the
parties had fourteen days in which to file written objections to the Report and
Recommendation. No objections were filed by the parties.
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):

ORDER ADOPTING REPORT AND RECOMMENDATION- 1

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 wellfounded in the law based on the facts of this particular case.
THEREFORE, IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 54) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS THEREFORE ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 18) is GRANTED IN PART.
Plaintiffs’ Amended Complaint (Dkt. 10) is DISMISSED IN ITS
ENTIRETY WITHOUT PREJUDICE as to all claims except Plaintiffs’
First and Second Causes of Action, Breach of Fiduciary Duty, and Fourth
Cause of Action in part, as set forth in the Report and Recommendation.

ORDER ADOPTING REPORT AND RECOMMENDATION- 2

2.

Plaintiffs shall file a Second Amended Complaint in accordance with the
limitations and direction in the Report and Recommendation. The Second
Amended Complaint shall set forth their remaining claims with thirty (30)
days from the date of this Order. Plaintiffs’ failure to file a Second
Amended Complaint within thirty (30) days will result in a termination of
this action as to all claims.

3.

Plaintiffs’ Motion for In Rem proceeding (Dkt. 38) is DENIED AS MOOT.

DATED: March 22, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION- 3