24 Hour Fitness USA v. Ricci (Duncan)

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. granting 9 Motion to Dismiss; adopting Findings and Recommendations re 16 Findings and Recommendations.; denying 1 Motion to Compel Arbitration. Signed by Judge Richard F. Cebull on 9/24/2012. THIS MATTER IS DISMISSED WITHOUT PREJUDICE. (CAA, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

24 HOUR FITNESS USA, INC.,
dba 24 HOUR FITNESS,
Petitioner,

w.

TIFFANY RICCI (DUNCAN),
Respondent.

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CV-11-140-BLG-RFC-CSO

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

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United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 16) with respect to the Petition to Compel Arbitration
(doc. 1) and Ricci's Motion to Dismiss (doc. 9). Judge Ostby recommends this
Court dismiss this action without prejudice under the "first to file" rule because
Ricci filed a nearly identical action in the Northern District of California before
this action was filed. See Pacesetter Systems, Inc. v. Mediatronic, Inc., 678 F.2d
93, 94-95 (9th Cir. 1982).

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)(l). Although 24 Hour
Fitness did not file formal objections, it did notifY this Court that Judge Samuel
Conti of the United States District Court for the Northern District of California,
who is presiding over the previously-filed action, precluded 24 Hour Fitness from
proceeding in this Court. Doc. 17. 24 Hour Fitness nonetheless asks this Court to
stay these proceedings until Judge Conti's Order becomes final.
In any event, the finality of Judge Conti's Order is irrelevant to whether
Judge Ostby correctly recommended that this Court decline jurisdiction over this
action. The fact is, Ricci's similar action was filed first in a court that is more
familiar with the parties' dispute. Judge Ostby'S recommendation promotes the
interests of federal comity and judicial efficiency. It is therefore adopted in its
entirety.
Accordingly, IT IS HEREBY ORDERED that 24 Hour Fitness's Petition
to Compel Arbitration (doc. 1) is DENIED and Ricci's Motion to Dismiss (doc. 9)
is GRANTED: this matter is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is directed to notifY the parties of the entry of this Order
and close this case.
DATED the

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J~ day of September, 2012.
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CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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