McCormack v. Everest National Insurance Company et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATION. NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation 48 shall be INCORPORATED by reference and ADOPTED in its entirety. IT IS THEREFORE ORDERED: Defendants' Motion to Dismiss 13 is GRANTED and Plaintiff's claims against Christopher E. Caldwell, Whitehead, Amberson & Caldwell, PLLC, and Ronda K. Nichols are DISMISSED WITH PREJUDICE. Defendants' Motion to Exclude Plaintiff's Documents 46 is deemed MOOT. 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

ROBERT JAMES MCCORMACK,
Case No. 1:13-CV-00318-EJL-CWD
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
EVEREST NATIONAL INSURANCE
COMPANY, et al,
Defendants.

The United States Magistrate Judge issued a Report and Recommendation in this
matter. (Dkt. 48.) 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.
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,
however, no objections are filed the district court need not conduct a de novo review. In

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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
error on the face of the record. Moreover, the Court finds the Report and
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

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
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 48) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS THEREFORE ORDERED:
1.

Defendants’ Motion to Dismiss (Dkt. 13) is GRANTED and Plaintiff’s
claims against Christopher E. Caldwell, Whitehead, Amberson & Caldwell,
PLLC, and Ronda K. Nichols are DISMISSED WITH PREJUDICE.

2.

Defendants’ Motion to Exclude Plaintiff’s Documents (Dkt. 46) is deemed
MOOT.

DATED: November 4, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 3