24 Hour Fitness USA v. Salminen

Filing 18

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. Accordingly, IT IS HEREBY ORDERED that 24 Hour Fitness's Petition to Compel Arbitration (doc. 1) is DENIED and Salminen's Motion to Dismiss (doc. 9) is GRANTED: this matter is DISMISSED WITHOUT PREJUDICE. Signed by Judge Richard F. Cebull on 9/24/2012. (ACL, )

FILED

SEP 2 ~ 2012
PATRICK E. DUFFY CLERK
BY
-~biPUtY~~dIiiik~--

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

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

)
)

CV-11-147-BLG-RFC-CSO

)

Petitioner,

)
)

vs.

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

)
)

WILLIAM SALMINEN,

)
)

Respondent.

)

-----------------------)
United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 16) with respect to the Petition to Compel Arbitration
(doc. 1) and Salminen's Motion to Dismiss (doc. 9). Judge Ostby recommends
this Court dismiss this action without prejudice under the "first to file" rule
because Respondent 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).

1

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). 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, Salminen'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 Salminen'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 t~eA day of September, 2012.

2

CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

3