McCormack v. Everest National Insurance Company et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS adopting 51 Report and Recommendations, granting 30 Motion to Dismiss, granting 33 Motion to Dismiss for Failure to State a Claim, granting 36 Motion to Dismiss for Failure to State a Claim, de nying as moot 47 Motion to Strike. All claims against Defendants Dave Foss, Debra Frost, Larry Hynes, Jan Epp, Anita Travis, Scott Lossmann, Debbie Richardson, Tina Williams, Thomas Kimberly, Erin Aldape, Pam Sonen, Gary Barrier, and Johanna Sm ith are DISMISSED WITHOUT PREJUDICE. Plaintiff Robert McCormack is granted leave to file an amended complaint within 20 days of this Order. 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; CHRISTOPHER E.
CALDWELL; RONDA K. NICHOLS;
WHITEHEAD, AMBERSON &
CALDWELL, PLLC; APRIL DAWSON;
DAVE FOSS; DEBRA FROST;
LARRY HYNES; JAN EPP;
ANITA TRAVIS; SCOTT LOSSMANN;
SHIRLEY AUDENS; DEBBIE
RICHARDSON; TINA WILLIAMS;
JOSEPH CARDONA; THOMAS
KIMBERLY; WILLIAM POULSON;
ERIN ALDAPE; CATHERINE
WHINNERY; RONA SIEGERT;
THERESA BALDRIDGE; CHRISTINA
BOULAY; PAM SONEN; RANDY
BLADES; GARY BARRIER; JILL
WHITTINGTON; JOHANNA
SMITH; JEFF KIRKMAN; GARRETT
COBURN; ALAN STEWART;
DAVID WRIGHT; HOWARD YORDY;
STAN HOUSE; SABINO RAMIREZ;
and TERRY ROSENTHAL,
Defendants.

ORDER - 1

The United States Magistrate Judge issued a Report and Recommendation in this
matter. (Dkt. 51.) 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 Amay 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 Ashall 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, Ato 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 (AAbsent
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.

ORDER - 2

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). AWhen 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 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. 51) shall be INCORPORATED by reference, ADOPTED in its
entirety and ordered as follows:
1)

Defendant Everest National Insurance Company’s Motion to Dismiss (Dkt.

30) is GRANTED;
2)

The Motion to Dismiss filed by Defendants Shirley Audens, Joseph Cardona,

Rona Siegart, Theresa Baldridge, Christina Boulay, Randy Blades, Jill Whittington, Jeff

ORDER - 3

Kirkman, Garrett Coburn, Alan Stewart, David Wright, Howard Yordy, Stan House,
Sabina Ramirez, and Terry Rosenthal (Dkt. 33) is GRANTED;
3)

The Motion to Dismiss filed by Defendants April Dawson, Catherine

Whinnery, and William Poulson (Dkt. 36) is GRANTED;
4)

Defendant Everest’s Motion to Strike (Dkt. 47) is DENIED AS MOOT;

5)

All claims against Defendants Dave Foss, Debra Frost, Larry Hynes, Jan Epp,

Anita Travis, Scott Lossmann, Debbie Richardson, Tina Williams, Thomas Kimberly, Erin
Aldape, Pam Sonen, Gary Barrier, and Johanna Smith are DISMISSED WITHOUT
PREJUDICE under Federal Rule of Civil Procedure 4(m); and
6)

Plaintiff Robert McCormack is granted leave to file an amended complaint

only to his 42 U.S.C. § 1983 Eighth Amendment claim against one or more of the Corizon
or IDOC Defendants in accordance with the instructions contained in Judge Dale’s Report
and Recommendation (Dkt. 51) within 20 days of this Order Adopting Report and
Recommendation. Failure to do so may result in this action being dismissed without
further notice.
DATED: January 28, 2015

_________________________
Edward J. Lodge
United States District Judge

ORDER - 4