Telford v. Montana Land Exchange et al

Filing 15

ORDER overruling 9 Findings and Recommendations to the extent described in this order. Signed by Judge Brian Morris on 4/16/2019. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
HOLLI TELFORD,
Plaintiff,

CV 19-02-BU-BMM-JCL

vs.
MONTANA LAND EXCHANGE, M.
STOSICH, DOES REALTORS OF
MONTANA LAND EXCHANGE,
DOES EMPLOYEES OF TOWN, and
U.S. BANK,

ORDER

Defendants.

Plaintiff Holli Telford, proceeding pro se, commenced this action by filing
her complaint and an application requesting leave to proceed in forma pauperis.
The Court granted Telford’s application pursuant to 28 U.S.C. § 1915(a) on
January 8, 2019. United States Magistrate Judge Jeremiah Lynch had a duty to
screen Telford’s Complaint before it was served on defendants pursuant to 28
U.S.C. § 1915(e)(2). Judge Lynch reviewed the Complaint to identify cognizable
claims.
Judge Lynch determined that Telford’s pleading failed to state a claim upon
which relief could be granted and was subject to dismissal. The Court granted

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Telford an opportunity to file an amended complaint to cure the deficiencies noted
by the Court on or before February 28, 2019.
Telford did not file her amended complaint on or before February 28, 2019.
Judge Lynch accordingly issued Findings and Recommendations recommending
dismissal of this action. (Doc. 9.) Telford’s amended complaint was subsequently
filed on March 7, 2019 (Doc. 10.) Telford also timely filed an objection to Judge
Lynch’s Findings and Recommendations. (Doc. 11.)
The Court reviews de novo Findings and Recommendations timely objected
to. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the portions of the
Findings and Recommendations not specifically objected to. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where
a party’s objections constitute perfunctory responses argued in an attempt to
engage the district court in a reargument of the same arguments set forth in the
original response, however, the Court will review the applicable portions of the
findings and recommendations for clear error. Rosling v. Kirkegard, 2014 WL
693315 *3 (D. Mont. Feb. 21, 2014) (internal citations omitted).
Telford argues that she attempted to obtain a phone continuance to file her
amended complaint on February 28, 2019. (Doc. 11.) Telford reasoned that she
needed a one-day extension to receive critical evidence to attach to her amended
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complaint. Telford argues that she was told a phone continuance could not be
granted. Telford asserts that she was told that she needed to mail in her
continuance request. Telford argues that she resides in a remote area which
prevents mail from being delivered or received on a timely basis. Telford asks the
Court to overrule Judge Lynch’s Findings and Recommendations and allow her
First Amended Complaint to proceed.
IT IS ORDERED: Judge Lynch’s Findings and Recommendations (Doc. 9)
are OVERRULED to the extent described above. Telford’s First Amended
Complaint shall proceed to Judge Lynch’s review as required by 28 U.S.C. §
1915(e)(2).
DATED this 16th day of April, 2019.

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