Janet Parry v. Lehman Brothers Bank, FSB et al

Filing 18

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS ; denying as moot 4 Motion to Dismiss; denying as moot 5 Motion to Take Judicial Notice; Plaintiffs Complaint (Dkt. 1, Atts. 1 & 2) is DISMISSED for lack of prosecution and this action is TERMINATED. 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

JANET PARRY,
Case No. 1:11-cv-00573-EJL-REB
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
LEHMAN BROTHERS BANK, FSB, et
al.,
Defendants.

On August 9, 2012, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation in this matter. (Dkt. 16.) The Report and Recommendation
sets forth the procedural history of this case and recommends that the case be dismissed
for lack of prosecution. 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 and the time for doing so has passed. Notably, the Plaintiff has
indicated her request that the case be dismissed. (Dkt. 17.)
DISCUSSION
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.”
Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

however, no objections are filed the district court need not conduct a de novo review. 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). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)).
In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however,
reviewed the Report and Recommendation and the record in this matter and finds no clear
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

error on the face of the record. The Magistrate Judge properly set forth the law applicable
to dismissal for failure to prosecute and has appropriately applied the law to the facts and
circumstances of this case. The Court finds the Report and Recommendation is wellfounded in the law based on the facts of this particular case and this Court is in agreement
with the same. Accordingly, the Court will adopt the Report and Recommendation and
will dismiss the case for failure to prosecute.
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
1)

Plaintiff’s Complaint (Dkt. 1, Atts. 1 & 2) is DISMISSED for lack of
prosecution and this action is TERMINATED.

2)

Defendant’s Motion to Dismiss (Dkt. 4) and Motion to Take Judicial Notice
are DENIED AS MOOT.
DATED: August 29, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 3