Reilly et al v. Levin et al

Filing 34

ORDER ON REPORT AND RECOMMENDATION. NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on December 18, 2015 27 is ADOPTED IN ITS ENTIRETY as follows: The Defendants Motions to Dismiss 11 and 17 are GRANTED. This case is DISMISSED WITH PREJUDICE and without leave to amend. 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

JAMES P. REILLY, et al,
Case No. 1:15-CV-00429-EJL
Plaintiffs,
ORDER ON REPORT AND
RECOMMENDATION

v.
MATTHEW A. LEVIN, et al,
Defendants.

INTRODUCTION
On December 18, 2015, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”) recommending that the Defendants’ Motions to
Dismiss be granted. (Dkt. 27.) 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 recommendations made by the magistrate judge. Id.; see also Fed. R. Civ. P.
ORDER - 1

72(b). The Plaintiffs filed written objections to the Report. (Dkt. 28.) Defendants filed
responses. (Dkt. 29, 30.) Plaintiffs then filed reply briefs. (Dkt. 31, 32.) 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
ORDER - 2

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)).
The Court has reviewed the unobjected to portions of the Report as well as the
record in this matter for clear error and none has been found. The Court has also
conducted a de novo review of those portions of the Report to which the Plaintiffs have
objected and finds as follows.
DISCUSSION
The full procedural background and facts of this case are well articulated in the
Report and the Court incorporates the same in this Order. (Dkt. 27.) In general, this case
concerns the parties’ contractual agreement to participate in arbitration. (Dkt. 1.)
Plaintiffs’ claims appear to involve arguments that the Defendants failed to participate in
good faith during the arbitration and challenges to the Defendants’ filing in a Clark
County, Washington court. Plaintiffs James P. Reilly and Victoria Jelderks are proceeding
pro se in this matter. Defendants Matthew A. Levin and Shannon Armstrong are attorneys
located in Oregon. The remaining Defendants are Mark A. Fleischauer, Dan L. Evans,
Mason Matthew Evans, and two entities controlled by Mark Fleischauer – JH Kelly, LLC
and Liberty Evans LLC. Both the attorney Defendants and the other named Defendants
filed Motions to Dismiss that were the subject of the Report.
ORDER - 3

The Report recommends granting both Motions to Dismiss for several reasons:
improper service, lack of personal jurisdiction, improper venue, and lack of subject matter
jurisdiction. (Dkt. 27.) The Report also recommends denying leave to amend the
complaint. (Dkt. 27 at 25.) Plaintiffs object to the Report’s recommendations raising a
myriad of arguments, some of which were raised in their response to the Motions to
Dismiss. (Dkt. 19, 28, 31, 32.) In their objections, Plaintiffs maintain their claims are
valid and that they have properly served the Defendants. (Dkt. 28, 31, 32.) However,
Plaintiffs primarily focus on challenging the timing of both the Report and the
Defendants’ responses. (Dkt. 28, 31, 32.)
A review of the record in this matter establishes Plaintiffs’ principal objection,
regarding the timing of the Report and various filings, is meritless. Specifically, Plaintiffs
claim Judge Dale prematurely dismissed their case without allowing them the proper
time to respond and without acknowledging Defendants purportedly failed to timely
respond to their Complaint. Although the Court disagrees with both of these contentions,
it need not further discuss them because Judge Dale dismissed Plaintiffs’ claim for lack of
subject matter jurisdiction. (Dkt. 27.) A federal court may dismiss an action sua sponte
for lack of jurisdiction at any time in the proceeding, including before issuing a summons
or following other procedural requirements. Franklin v. State of Or., State Welfare
Division, 662 F.2d 1337, 1342 (9th Cir. 1981). Plaintiffs’ arguments regarding the timing
of the Report and related filings are accordingly immaterial. Judge Dale could sua sponte

ORDER - 4

dismiss Plaintiffs’ claims upon review of the Complaint, regardless of Defendants’
subsequent filings and Plaintiffs’ responses thereto.
The Court has reviewed all of Plaintiffs’ objections de novo and concludes the
Report has properly addressed the arguments in this case. Furthermore, this Court’s own
view of the record, briefing, and applicable law is consistent with the reasoning and
analysis as articulated in the Report. For these reasons, the Court will adopt the Report in
its entirety and grant the Defendants’ Motions to Dismiss.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on December 18, 2015 (Dkt. 27) is ADOPTED IN ITS
ENTIRETY as follows:
1)

The Defendants’ Motions to Dismiss (Dkt. 11, 17) are GRANTED.

2)

This case is DISMISSED WITH PREJUDICE and without leave to
amend.
DATED: May 23, 2016

Honorable Edward J. Lodge
U. S. District Judge

ORDER - 5