Lussy v. Lussy et al

Filing 41

ORDER ADOPTING 30 FINDINGS AND RECOMMENDATIONS; denying 18 Motion to Dismiss for Failure to State a Claim. Signed by Judge Brian Morris on 2/6/2018. (TAG) Modified on 2/7/2018 to correctly indicate signing date (TAG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
RICHARD CHARLES LUSSY,
CV-17-79-BU-BMM-JCL
Plaintiff,
v.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

HENRY PAUMIE LUSSY, et. al.,

Defendants.

Plaintiff Richard Charles Lussy filed an amended complaint and had
summonses issued on November 8, 2017. (Doc. 8.) Lussy filed a Motion for
Default Judgment as to Defendants Launa Lynn Roque and Juahlee Murie Bornff
on December 11, 2017. (Doc. 11.) Attached to the motions were summonses and

1

proofs of service for both Roque and Bornff. (Doc. 11-1.) Lussy filed an amended
Motion for Default Judgment on December 15, 2017. (Doc. 15.)
Roque and Bornff responded by filing the instant Motion to Dismiss For
Failure to State A Claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 18.)
United States Magistrate Judge Jeremiah Lynch issued an Order and
Findings and Recommendation in this matter on January 23, 2018. (Doc. 30.)
Judge Lynch found that Roque and Bornff had defaulted as of Lussy’s sufficient
application for the entry of default. (Doc. 30 at 3.) Judge Lynch found that the
appropriate vehicle for Roque and Bornff to contest the default is a Motion to Set
Aside pursuant to Federal Rule of Civil Procedure 55(c). Id. Judge Lynch
recommended that the Court deny Roque and Bornff’s Motion to Dismiss. Id.
Roque and Bornff have subsequently filed a Motion to Set Aside. (Doc. 39.)
No party filed objections to Judge Lynch’s Findings and Recommendation.
The Court has thus reviewed the Findings and Recommendation for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). The Court finds no error in Judge Lynch’s Findings and
Recommendation, and adopts them in full.

2

ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Lynch’s Findings and
Recommendation (Doc. 30) is ADOPTED IN FULL.
Defendants Roque and Bornff’s Motion to Dismiss for Failure to State a
Claim (Doc. 18) is DENIED.
DATED this 6th day of February, 2018.

3