Sagan et al v. Idaho Housing and Finance Association et al

Filing 69

ORDER ADOPTING REPORT AND RECOMMENDATIONS the Report and Recommendation (Dkt. 66 ) shall be INCORPORATED by reference and ADOPTED in its entirety. Defendants' Motions to Dismiss (Dkt. 53 , 57 ) are GRANTED. Plaintiffs'Complaint against a ll Defendants is DISMISSED in its entirety without leave to amend. Motion to Take Judicial Notice (Dkt. 54) is GRANTED. Any lis pendens recorded by Plaintiffs related to the real property located at12271 Murchison Street in Boise, Idaho that has not previously been expunged is hereby QUASHED AND EXPUNGED. If an additional order is needed from the Court, Defendants shall provide a proposed order with the necessary language to effectuate expungement. Plaintiffs are ordered ENJOINED from recording any further lis pendens or other documents encumbering title to the aforementioned property without leave of a court of competent jurisdiction. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SERGEY SAGAN and YULIYA
SAGAN,

Case No. 1:12-cv-00355-EJL-MHW

Plaintiffs,

ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
IDAHO HOUSING AND FINANCE
ASSOCIATION, et al.,
Defendants.

On August 22, 2013, United States Magistrate Judge Mikel H. Williams issued a
Report and Recommendation (“Report”) in this matter. (Dkt. 66.) The Report sets forth
the underlying factual and procedural history of the case and recommends that the
Defendants’ Motions to Dismiss be granted. (Dkt. 66.) Pursuant to 28 U.S.C. § 636(b)(1),
the parties had fourteen days in which to file written objections to the Report. No
objections were filed by the parties and the time for doing so has passed.
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
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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)).

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report.1 The Court has, however, reviewed the Report as well
as the record in this matter and finds no clear error on the face of the record. The
Magistrate Judge properly set forth the law applicable to the Motions to Dismiss and has
appropriately applied the law to the facts and circumstances of this case. For the same
reasons articulated by the Magistrate Judge, this Court too finds that the Complaint fails
to raise any viable claim against any of the Defendants. Further, the Court agrees that the
claims raised here appear to be barred by claim preclusion or res judicata at least as to
certain of the Defendants. As such, the Court finds that any amendment as to the claims
would be futile such that leave to amend is not warranted in this case. The Court also
finds that the Magistrate Judge properly afforded the Plaintiffs the proper consideration
for the fact that they are proceeding pro se in this matter. Finally, the Court has
considered the Defendants’ requests for attorney fees and agrees that the Report properly
recommends denying the request for fees at this time and suggests that Defendants may
renew their motion, if they chose, to comport with the requirements of Rule 54.
In sum, the Court finds the Report is well-founded 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 will grant the Defendants’ Motions to Dismiss as stated therein.

1

Notice of the Report and Recommendation was mailed to the Plaintiffs at their last known
address provided to the Court. See Fed. R. Civ. P. 5(b) (Dkt. 66-68.)
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 66) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS FURTHER ORDERED as follows:
1)

Defendants’ Motions to Dismiss (Dkt. 53, 57) are GRANTED. Plaintiffs’
Complaint against all Defendants is DISMISSED in its entirety without
leave to amend.

2)

Motion to Take Judicial Notice (Dkt. 54) is GRANTED.

3)

Any lis pendens recorded by Plaintiffs related to the real property located at
12271 Murchison Street in Boise, Idaho that has not previously been
expunged is hereby QUASHED AND EXPUNGED. If an additional order
is needed from the Court, Defendants shall provide a proposed order with
the necessary language to effectuate expungement. Plaintiffs are ordered
ENJOINED from recording any further lis pendens or other documents
encumbering title to the aforementioned property without leave of a court of
competent jurisdiction.

DATED: October 28, 2013

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 4