Miller et al v. BAC Home Loans Servicing LP FKA et al
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 Report and Recommendations, granting 8 Motion to Dismiss, filed by Bank of America Corporation, BAC Home Loan Servicing, LP, Recontrust Company NA,. 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
DUANE MILLER and DAWNELL
MILLER,
Plaintiffs,
Case No. 1:11-CV-00199-EJL
ORDER ADOPTING REPORT
AND RECOMMENDATION
v.
BAC HOME LOAN SERVICING, LP,
fka, COUNTRYWIDE HOME LOANS
SERVICING, LP, BANK OF
AMERICAN CORPORATION, and
RECONSTRUST COMPANY, N.A.,
Defendants.
On September 9, 2011, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation (Dkt. 16) 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
ORDER - 1
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,
111 S.Ct. 2661 (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, 111 S.Ct. 2661 (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 and circumstances of this particular case. In
addition, as suggested in the Report and Recommendation, this Court has considered
whether leave to amend should be granted in this matter considering the procedural
posture of this case as well as the legal and factual allegations making up the basis for the
claims in the current complaint. (Dkt. 16.) Having done so, the Court finds dismissal of
ORDER - 2
this case is appropriate because it does not appear the pleading could be cured by
allowing Plaintiffs to amend the complaint.
ORDER
NOW THEREFORE, IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 16) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Dkt. 8) is
GRANTED.
DATED: October 3, 2011
Honorable Edward J. Lodge
U. S. District Judge
ORDER - 3
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