Dowdy et al v. VA Department of Veterans Affairs Regional Office et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION - NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on 11/10/2015 (Dkt. 9 ) is ADOPTED IN ITS ENTIRETY as follows: 1. The Defendants Motion for More Definite Statement (Dkt. 6 ) i s GRANTED. Plaintiffs shall file an amended pleading clarifying their claims as well as the jurisdictional and factual basis underlying their claims as stated herein on or before 3/21/2016. Failure to file an amended pleading may result in dismissal of this action without further notice. 2. The Defendants Motion to Dismiss (Dkt. 5 ) is DENIED WITHOUT PREJUDICE with leave to renew the same within thirty-days after Plaintiffs file their amended pleading as stated herein. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ARLEN E. DOWDY, et al,
Case No. 1:15-CV-00247-EJL-REB
Plaintiffs,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
VA DEPARTMENT OF VETERANS
AFFAIRS REGIONAL OFFICE and
KATHY MALIN, Director of VA
Department of Veterans Affairs Regional
Office,
Defendants.

INTRODUCTION
On November 10, 2015, United States Chief Magistrate Judge Ronald E. Bush issued
a Report and Recommendation (“Report”), recommending that the Defendants’ Motion to
for a More Definite Statement be granted and the Motion to Dismiss be denied without
prejudice subject to renewal. (Dkt. 9.) Any party may challenge a magistrate judge’s
proposed recommendation by filing written objections to the Report within fourteen days
after being served with a copy of the same. See 28 U.S.C. § 636(b)(1); Local Civil Rule
72.1(b). The district court must then “make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” Id.
The district court may accept, reject, or modify in whole or in part, the findings and
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

recommendations made by the magistrate judge. Id.; see also Fed. R. Civ. P. 72(b). No
written objections have been filed and the matter is ripe for the Court’s consideration. See
Local Civil Rule 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
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 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

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

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)).
The Court has reviewed the Report as well as the entire record in this matter for clear
error on the face of the record and none has been found.
DISCUSSION
Plaintiffs, proceeding pro se, initiated this action in state court against the Defendants
who removed the case to this Court. (Dkt. 1.) Thereafter, Defendants filed the pending
Motion to Dismiss and Motion for a More Definite Statement. (Dkt. 5, 6.) The Plaintiffs did
not responded to the Motions. The Report concludes a more definite statement is needed in
this case in order for the Defendants to be fairly apprised of the nature of the claims asserted
and the transactions or occurrences giving rise to the claims. (Dkt. 9.)
This Court has reviewed the briefing on the Motions, the Report, as well as the entire
record herein. This review was undertaken with the Court being mindful that the Plaintiffs
are pro se litigants and, as such, the filings and motions are construed liberally. See Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). That being said, while pro se litigants are
held to less stringent standards, a litigant's pro se status does not excuse him or her from
complying with the procedural or substantive rules of the court. Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003). As the
Ninth Circuit has held “an ordinary pro se litigant, like other litigants, must comply strictly
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

with the summary judgment rules.” Thomas, 611 F.3d at 1150 (citing Bias v. Moynihan, 508
F.3d 1212, 1219 (9th Cir. 2007)). Applying these principles here, this Court is in agreement
with the reasoning and conclusion of the Report and adopts the same as its own.
The Complaint does not satisfy Federal Rule of Civil Procedure 8’s requirement that
it set forth a short statement of the elements of the claim. As such, a more definite statement
from the Plaintiffs is required in order for the Defendants to be fairly apprised of the nature
of the claims and the facts making up the basis for those claims. Fed. R. Civ. P. 12(e). Such
clarification is necessary before the Court can address the jurisdictional challenges made in
the Defendants’ Motion to Dismiss. For these reasons and those stated in the Report, the
Court will grant the Motion for a More Definite Statement and deny without prejudice the
Motion to Dismiss. As stated in the Report, the Court will direct Plaintiffs to provide a more
definite statement by filing an amended pleading which clarifies the cause or causes of action
claimed and the factual basis for the claims. The amended pleading should also address the
jurisdictional arguments raised in the Defendants’ Motion to Dismiss. (Dkt. 5.) This amended
pleading shall be filed on or before March 21, 2016. The Plaintiffs are advised that failure
to file an amended pleading may result in dismissal of the case without further notice from
the Court.

ORDER ADOPTING REPORT AND RECOMMENDATION - 4

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on November 10, 2015 (Dkt. 9) is ADOPTED IN ITS
ENTIRETY as follows:
1.

The Defendants’ Motion for More Definite Statement (Dkt. 6) is GRANTED.
Plaintiffs shall file an amended pleading clarifying their claims as well as the
jurisdictional and factual basis underlying their claims as stated herein on or
before March 21, 2016. Failure to file an amended pleading may result in
dismissal of this action without further notice.

2.

The Defendants’ Motion to Dismiss (Dkt. 5) is DENIED WITHOUT
PREJUDICE with leave to renew the same within thirty-days after Plaintiffs
file their amended pleading as stated herein.

DATED: February 19, 2016

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 5