Bettwieser v. Gans et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION - NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on 5/2/2016 (Dkt. 27 ) is ADOPTED IN ITS ENTIRETY. IT IS FURTHER ORDERED that Defendants Motion to Dismiss (Dkt. 9 ) is GRANTED and the Complaint is DISMISSED as to ALL CLAIMS against HerschelHoward. 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) Modified on 9/1/2016 to correct filing date (cjs).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARTIN BETTWIESER,
Case No. 1:15-CV-00493-EJL
Plaintiff,
MEMORANDUM DECISION
AND ORDER

v.
BILLY GANS, aka WILLIAM GANS,
and BILLY GANTZ, KELLY
KALBFLEISCH, HERSCHEL
HOWARD, UNITED STATES POSTAL
SERVICE,
Defendants.

INTRODUCTION
On May 2, 2016, Chief United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation (AReport@), recommending that Defendant=s Motion to
Dismiss be granted. (Dkt. 27.)1 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

1 Chief Magistrate Judge Bush also issued an Order denying the Plaintiff’s Motion to Strike. (Dkt. 26, 27.)

district court must then Amake 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. 72(b). The
Plaintiff has not filed objections to the Report but did file a Motion for Reconsideration
which has been denied. (Dkt. 28, 34.) The matter is now 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 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.
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)).
The Court has reviewed the entire Report as well as the record in this matter for
clear error on the face of the record and none has been found. The Court has also conducted
a de novo review of the Report in light of the Plaintiff’s Motion for Reconsideration and
other filings and concludes the Report is correct. This review was undertaken with the
Court being mindful that the Plaintiff is a pro se litigant 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 and
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). Applying these principles here, this
Court is in agreement with the reasoning and conclusion of the Report.
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.) The Plaintiff, Martin
Bettwieser, filed the Complaint pro se in this matter raising claims relating to his Freedom

of Information Act (FOIA) request. (Dkt. 1.) The named Defendants are Billy Gans, Kelly
Kalbfleisch, Herschel Howard, and the United States Postal Service. Defendant Howard
filed the instant Motion to Dismiss based on lack of subject matter jurisdiction and failure
to state a claim. (Dkt. 9.)2 The Report agrees and recommends that this Court grant the
Motion and dismiss the claims against Defendant Howard. (Dkt. 27.)
This Court finds the Report accurately states the applicable law and appropriately
applies that law to the facts in this case. In particular, the Court agrees with the Reports
reasoning, analysis, and conclusion that there is no subject matter jurisdiction over the
claims against Defendant Howard, as a union representative, under 39 U.S.C. § 1208(c).
(Dkt. 27.) The Court has considered the Plaintiff’s argument made in various filings that
additional responses from the Defendants are needed before a complete response to the
Motion to Dismiss can be made. (Dkt. 12, 28.) This Court has reviewed all of the Plaintiffs
filings including those made as to Defendant Howard’s Motion to Dismiss as well as the
United States Postal Service’s Motion to Dismiss. Having done so, the Court concludes
that the Report and the Magistrate Judge’s Order denying Plaintiff’s Motion to Reconsider
properly addressed that argument and correctly concluded that Plaintiff’s filings do not
cure the lack of subject-matter jurisdiction as to Defendant Howard. (Dkt. 27, 34.) In
addition, this Court notes that where, as here, a defendant challenges subject matter
jurisdiction pursuant to Rule 12(b)(1), “the plaintiff has the burden of proving jurisdiction
in order to survive the motion.” Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d
1189, 1197 (9th Cir. 2008) (internal quotation marks and citation omitted). The Plaintiff in
2 A separate Motion to Dismiss has been filed by the United States Postal Service. (Dkt. 22.)

this case has not made this showing. For all of these reasons, the Court agrees with the
Report and will adopt the same. The Motion to Dismiss is granted.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on May 2, 2016 (Dkt. 27) is ADOPTED IN ITS ENTIRETY.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Dkt. 9) is
GRANTED and the Complaint is DISMISSED as to ALL CLAIMS against Herschel
Howard.
DATED: August 31, 2016

_________________________
Edward J. Lodge
United States District Judge