Fish v. Acton et al

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 16 in full. Fish's Motion for Default Judgment 11 is DENIED and Defendants' Motion to Dismiss 12 is DENIED. Signed by Judge Richard F. Cebull on 4/12/2012. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF MONTANA

APR 122012
PATRICK E. DUFFY CLERK

BILLINGS DIVISION
SUSAN F. FISH,

BY_--w.:=~_ _

Deputy Clerk

U.S. DISTRICT COURT
BILLINGS DIVISION

CV-11-99-BLG-RFC-CSO
Plaintiff,

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

JO ACTON, ROBERT PAUL, SUE
ORAND, ANNAMAE DERRICK,
MARK HARTMAN, CHARLOTTE
DOLEZAL, and MIKE FERRITER,
Defendants.

United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation recommending that Fish's Motion for Default Judgment (doc.
11) be denied and that Defendants' Motion to Dismiss (doc. 12) also be denied.

Doc. 16. Judge Ostby recommends the motion to dismiss be denied because (1)
Defendants did not comply with L.R. 7.1 (c) by stating whether they confirmed
Fish's consent or opposition before filing their motion and (2) there is good cause
for extending the time for service of the Complaint since Fish is a prisoner
proceeding pro se whose only failure in service was failing to provide copies of

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the Complaint to the Sheriffs Deputies she hired to serve this lawsuit. Since Fish
has not properly served the Complaint, Judge Ostby recommends her Motion for
Default Judgment be denied.
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)(I). In this matter, no
party filed objections. While this failure to object to results in a waiver of all
objections to the findings of fact, Turner v. Duncan, 158 F.3d 449,455 (9th Cir.
1999), it 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).
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.
Accordingly, IT IS HEREBY ORDERED that Fish's Motion for Default
Judgment (doc. 11) is DENIED and Defendants' Motion to Dismiss (doc. 12) is
DENIED.

The Clerk of Court shall notify the parties of the entry of this Order.
DATED the 12th day of April, 2012.

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