Briese et al v. State of Montana et al

Filing 127

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - IT IS HEREBY ORDERED that Plaintiff's Motion to Dismiss Joanne Briese and J. Gregory Tomicich with prejudice is GRANTED; Plaintiff's Motion for Protective Order Staying Discovery Pending Decision on Dispositive Motion is MOOT. Signed by Judge Richard F. Cebull on 6/15/2011. (ACL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ERENE BRIESE, Individually;
JDB and JRB, Individually;
Erene Briese as Personal
Representative on behalf of the
heirs of David L. Briese, Jr.,
Plaintiffs,
vs.

STATE OF MONTANA, et al.,
Defendants.

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-15 Pl? \1 S2
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By

CV-09-146-BLG-RFC

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

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On May 18,2011, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends this Court
grant the motion to dismiss.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, no
party filed objections to the May 18, 2011 Findings and Recommendation. Failure
to object to a magistrate judge's findings and recommendation waives all
objections to the findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.
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1999). However, failure to object does not relieve this Court of its burden to
review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886
F.2d 1514, 1518 (9th Cir. 1989).
Rule 41(a)(2), Fed. R. Civ. P., provides, in relevant part, that after service of
an answer or summary judgment motion, and if no stipulation of dismissal is
obtained, "an action may be dismissed at the plaintiffs request only by court
order, on terms that the court considers proper."
Whether to grant a motion for voluntary dismissal is within the district
court's sound discretion. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001)
(citation omitted). "A district court should grant a motion for voluntary dismissal
under Rule 41(a)(2) unless a defendant can show that it will suffer some plain
legal prejudice as a result." Id. (citing Waller v. Financial Corp. ofAmerica, 828
F.2d 579,583 (9 Cir. 1987) and Hamilton v. Firestone Tire & Rubber Co., 679
F.2d 143, 145-46 (9 Cir. 1982)).
Joanne Briese and J. Gregory Tomicich have not sufficiently shown that
they will suffer some plain legal prejudice if the Court grants the motion to
dismiss. There is no reason to keep them in the case.
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
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Accordingly, IT IS HEREBY ORDERED that Plaintiffs' Motion to
Dismiss Joanne Briese and J. Gregory Tomicich with prejudice [Doc. 113] is
GRANTED. Plaintiffs' Motion for Protective Order Staying Discovery Pending

Decision on Dispositive Motion [Doc. 115] is MOOT.
The Clerk of CO~l1 notify the parties ofthe entry of this Order.
DATED the

If{' day ofJune, 2011.
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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