Tonsmeire v. Am South Bank et al

Filing 57

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION re 51 Report and Recommendations; granting 28 Motion to Dismiss; denying as moot 34 Motion to Continue; denying as moot 45 Motion for Extension of Time to File Response/Reply re 51 REP ORT AND RECOMMENDATIONS re 45 MOTION for Extension of Time to File Response/Reply ; adopting 52 Amended Report and Recommendations; granting 3 Motion to Dismiss for Failure to State a Claim; denying as moot 10 Motion to Continue; grantin g 15 Motion to Dismiss for Failure to State a Claim; denying as moot 24 Motion for Summary Judgment. Plaintiff's Complaint is DISMISSED WITH PREJUDICE. 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 (st) Modified on 2/19/2013 to include that the case is dismissed (st).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT C. TONSMEIRE,
Case No. 1:12-CV-00288-EJL
Plaintiff,
ORDER ADOPTING AMENDED
REPORT AND RECOMMENDATION

v.
AM SOUTH BANK, MICHAEL C.
DELANEY ARTHUR C. TONSMEIRE III,
ESTATE OF JOSEPH L. TONSMEIRE,
DANIEL L. TONSMEIRE, and EDWARD
C. TONSMEIRE,
Defendants.

United States Magistrate Judge Larry M. Boyle issued an Amended Report and
Recommendation in this matter. (Dkt. 52.) 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.
Objections were filed by Plaintiff and responses to the objections were filed by
Defendants. The matter is now ripe for the Court’s consideration.

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
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 1

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,
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, the objections were filed so the Court is required to conduct a de
novo determination of the Report and Recommendation.
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 2

FACTUAL BACKGROUND
The Court adopts the factual background set forth by Judge Boyle.

OBJECTIONS
Plaintiff contends that the Court is ignoring the law and that issues decided and
appealed in Alabama are ripe for review in federal court in Idaho. The Court respectively
disagrees with Plaintiff. The Court agrees with Judge Boyle that the doctrine of res
judicata applies to the current claims by Plaintiff. The Court has considered and
understands Plaintiff’s argument that the proceedings approximately 20 years ago in
Alabama were not fair or complete, but this Court does not have jurisdiction to re-open a
closed Alabama proceeding and cannot simply retry the proceedings ignoring the
Alabama proceedings. The judicial system is not set up to allow parties to re-litigate their
claims in another jurisdiction if the outcome in the first jurisdiction is not to their liking.
Plaintiff received appellate review of the Alabama proceedings.
This Court has reviewed Plaintiff’s claims and by his own admission they are the
same claims he litigated unsuccessfully in Alabama. The Court finds the three elements
of res judicata have been established: “(1) an identity of claims; (2) a final judgment on
the merits; and (3) identity or privity between the parties.” Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). Plaintiff wants to dispute that not
all the facts were presented in Alabama such that the judgment was not on the merits.
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 3

This argument is not properly raised before this Court and should have been raised to the
Alabama appellate court. This Court simply cannot re-try issues and claims already
adjudicated. Any claim of fraud must be raised with the Court that issued the judgment,
not a new court.
The Court adopts as it own response to Plaintiff’s objections the responses filed by
Defendants in Dkts. 55 and 56. For all these reasons, Plaintiff’s objections to the
Amended Report and Recommendation are denied and the action must be dismissed
based on Plaintiff’s failure to raise a claim upon which relief can be granted.

CONCLUSION
The Court has reviewed the Amended Report and Recommendation and the record
in this matter and finds no clear error on the face of the record. Moreover, the Court finds
the Amended Report and Recommendation is well-founded in the law based on the facts
of this particular case and this Court is in agreement with the same.

ORDER
IT IS ORDERED:
1.

The Amended Report and Recommendation (Dkt. 52) shall be
INCORPORATED by reference and ADOPTED in its entirety unless
otherwise modified by this Order.

2.

Defendants’ Motions to Dismiss (Dkt. 3, 15, and 28) are GRANTED.

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 4

3.

Plaintiff’s Motion for a Continuance (Dkt. 10), Motion for Summary
Judgment (Dkt. 24), Second Motion for a Continuance (Dkt. 34), Third
Motion for a Continuance (Dkt. 45) are DENIED AS MOOT based upon
the Court’s granting of the motions to dismiss.

4. Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

DATED: February 19, 2013

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 5