Hixon v Hewitt Associates LLC

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED that the Report and Recommendation 11 shall be INCORPORATED by reference and ADOPTED inits entirety. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss 5 isGRANTED and that the action be dismissed, without 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BRANDON HIXON,
Case No. 1:12-cv-00489-EJL-REB
Plaintiff,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION

HEWITT ASSOCIATES,
Defendants.

On April 29, 2013, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation in this matter. (Dkt. 11.) The Report and Recommendation
sets forth the underlying factual and procedural history of the case and recommends that
the Defendant’s Motion to Dismiss be granted and that the action be dismissed, without
prejudice. (Dkt. 11.) Pursuant to 28 U.S.C. § 636(b)(1)(C), a party objecting to a
Magistrate Judge’s recommended disposition must serve and file specific, written
objections within fourteen (14) days after being served with a copy. No objections were
filed by the parties and the time for doing so has passed.
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,
S:\Orders\Orders 13\RNR_Hewitt 12-489.docx

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 clear that the district judge must
review the magistrate judge’s finding 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 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

S:\Orders\Orders 13\RNR_Hewitt 12-489.docx

applicable to the Motion 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 Plaintiff has not properly exhausted the administrative remedies
available under the FSA Plan, as is required in the Ninth Circuit before bringing suit
under section 502 of ERISA, 29 U.S.C. § 1132. (Dkt. 11.)
In sum, the Court finds the 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.
Accordingly, the Court will adopt the Report and Recommendation and will grant the
Defendants’ Motion to Dismiss without prejudice as stated therein.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 11) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Dkt. 5) is
GRANTED and that the action be dismissed, without prejudice.

DATED: May 28, 2013

_________________________
Edward J. Lodge
United States District Judge

S:\Orders\Orders 13\RNR_Hewitt 12-489.docx