Griggs v. Howell & Vail LLP et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS 45 & 50 Report and Recommendations; Denying 36 Motion for Summary Judgment filed by Marty L Griggs, granting 24 Motion for Summary Judgment, filed by Howell & Vail LLP, granting 31 Motion to Dismiss , filed by Ford Motor Credit Company, denying 27 Motion for Summary Judgment filed by Marty L Griggs, denying 46 Motion for Default Judgment filed by Marty L Griggs. 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 dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARTY L. GRIGGS,
Case No. 2:10-CV-00646-EJL-MHW
Plaintiff,
ORDER ADOPTING REPORT
AND RECOMMENDATIONS

v.
HOWELL & VAIL, LLP., et al,
Defendants.

On August 8, 2008, United States Magistrate Judge Mikel H. Williams issued a
Report and Recommendation (Dkt. 45) in this matter. 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, however Plaintiff filed a
motion for default judgment against Ford Motor Credit Company (“Ford’) (Dkt. 46), an
Affidavit of Competency (Dkt. 48) as well as a pleading entitled “Support of Summary
Judgment” (Dkt. 48) wherein Plaintiff claimed the Magistrate Judge was in error and
default judgment should be entered against Ford for failing to file an answer to her
complaint.

ORDER - 1

In a second Report and Recommendation dated January 11, 2012 (Dkt. 50), Judge
Williams set forth the law that allows a party to either file an answer or other responsive
pleading. Judge Williams explained that the other responsive pleading filed by Ford was
a motion to dismiss (Dkt. 8), so entry of default would be improper and recommended
that Plaintiff’s Motion for Default Judgment (Dkt. 46) be denied. No objections were
filed to the second Report and Recommendation.
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.”
Moreover, this Court “shall make a de novo determination of those portions of the report
which objection is made.” Id. 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). In this case, no
objections were filed so the Court need not conduct a de novo determination of the Report
and Recommendations. The Court did, however, review the Report and
ORDER - 2

Recommendations and the record in this matter and finds the Report and
Recommendations to be well-founded in the law based on the facts of this particular case.
THEREFORE, IT IS HEREBY ORDERED that the Report and
Recommendations (Dkt. 45 and 50) shall be INCORPORATED by reference and
ADOPTED in their entirety.
IT IS THEREFORE ORDERED:
1.

Defendant Ford Motor Credit Company’s Motion to Dismiss (Docket No.
31) is GRANTED.

2.

Defendant Howell & Vail’s Motion for Summary Judgment (Docket No.
24) is GRANTED.

3.

Plaintiff Griggs’ Motion for Summary Judgment (Docket No. 27) is
DENIED.

4.

Plaintiff Griggs’ Motion for Summary Judgment (Docket No. 36) is
DENIED.

5.

Defendant Ford Motor Credit Company be awarded reasonable fees and
expenses from Plaintiff Griggs, incurred in responding to Griggs’ Second
Motion for Summary Judgment.

6.

Plaintiff Griggs’ Motion for Default Judgment for Defendant Ford Motor
Credit Company (Dkt. 46) is DENIED.

ORDER - 3

SO ORDERED.

DATED: January 31, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER - 4