Onsager v. Frontera Produce et al

Filing 80

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim. Signed by Judge Donald W. Molloy on 8/4/2014. (APP, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

FILED
AUG 0 ~ 201~
Cle~. y.S District Court

Dlstnct.Of Montana

Missoula

BETTE ONSAGER, as Personal
Representative of the Estate of Jerome
Onsager, and personally,

CV 13-66-BU-DWM-JCL

Plaintiff,

ORDER

vs.
FRONTERA PRODUCE LTD., a
foreign corporation; PRIMUS
GROUP, INC., a foreign corporation,
d/b/a "Primus Labs"; WALMART
STORES, INC., a foreign corporation;
JOHN DOES 1-10; and COMPANIES
XYZ,
Defendants.

The proposed Findings and Recommendations entered by United States
Magistrate Judge Jeremiah C. Lynch regarding Defendant Primus Group, Inc.'s
Motion to Dismiss, (Doc. 75), are now before the Court. Defendant Primus
Group, Inc. ("Primus") moves to dismiss allegations set forth in the Complaint for
failure to state a claim upon which relief may be granted, pursuant to Federal Rule
of Civil Procedure 12(b)(6). (Doc. 26.) Plaintiff opposes the Motion. (Doc. 44.)
Judge Lynch entered proposed Findings and Recommendations on the Motion on
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July 10,2014. (Doc. 75.)
"Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed fmdings and recommendations as
provided by rules of court." 28 U.S.C. § 636(b )(1). Because the statutory
objections period states that a party may file objections within a specified time
after service ofthe findings and recommendations, and service of the Findings and
Recommendations at issue was made by mail and electronic means, three days are
added after the period would otherwise expire. See Fed. R. Civ. P. 6(d).
Accordingly, written objections to Judge Lynch's proposed Findings and
Recommendations were due July 28, 2014. No party timely filed written
objections to the proposed Findings and Recommendations.
Judge Lynch's proposed Findings and Recommendations are reviewed for
clear error. When no party objects, the Court reviews the proposed findings and
recommendations of a United States Magistrate Judge for clear error. McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981). Clear error is present only ifthe Court is left with a "definite and firm
conviction that a mistake has been committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000).
The Court reviewed the proposed Findings and Recommendations and finds
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them free of error. They will therefore be adopted in-full. Accordingly, Primus'
Motion to Dismiss will be granted in-part and denied in-part as set forth in Judge
Lynch's written Order dated July 10,2014.
IT IS ORDERED that the proposed Findings and Recommendations entered
by United States Magistrate Judge Jeremiah C. Lynch regarding Defendant Primus
Group, Inc.'s Motion to Dismiss, (Doc. 75), are ADOPTED IN-FULL.
IT IS FURTHER ORDERED that Defendant Primus Group Inc.'s Motion to
Dismiss is GRANTED IN-PART and DENIED IN-PART, in accordance with the
Findings and Recommendations hereby adopted.
DATED this

4!:

day of August, 2014.

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