von Koenigsberg-Tyrvaldssen v. Kohut et al

Filing 49

ORDER ADOPTING 47 FINDINGS AND RECOMMENDATIONS; denying 44 Motion for TRO; granting 29 Motion for Summary Judgment and defendants are DISMISSED WITHOUTPREJUDICE. Signed by Judge Dana L. Christensen on 12/19/2016. Mailed to Tyrvaldssen. (TAG)

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

CV 15-25-H-DLC-JTJ
YMIR-JULE von KOENIGSBERGTYRVALDSSEN,
ORDER
Plaintiff,
vs.
TRISTAN KOHUT, LEROY
KIRKEGARD, BILLY REICH,
CARLA STRUTZL, and JOHN/JANE
DOES,
Defendants.
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on November 7, 2016, recommending that
Plaintiff Ymir-Jule von Koenigsberg-Tyrvaldssen's motion to dismiss Defendants
Billy Reich and Carla Strutz! be granted and Plaintiffs motion for a temporary
restraining order be denied. Plaintiff timely filed objections and is therefore
entitled to de novo review of those Findings and Recommendations to which he
specifically objects. 28 U.S.C. § 636(b)(1 )(C). This Court reviews for clear error
those findings and recommendations to which no party objects. See McDonnell

Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
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1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). "Clear error exists 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 parties are familiar
with the facts of this case and they will not be repeated here.
Turning to the objections, Plaintiff states that he objects "IN TOTO" to the
Findings and Recommendations. However, under the Magistrates Act, Plaintiff is
required to identify the "specified proposed findings or recommendations to which
objection is made." 28 U.S.C. § 636(b)(l)(C); see also L.R. 72.3(a)(2) ("An
objection filed pursuant to 28 U.S.C. § 636(b )(1) must itemize ... each
recommendation of the magistrate judge to which objection is made, setting forth
the authority the party relies on to contradict that recommendation."). Because
Plaintiff fails to specify and itemize his objections, the Findings and
Recommendations will be reviewed for clear error. 1
Upon review of the Findings and Recommendations, the Court agrees with
Judge Johnston that Plaintiffs motion to dismiss Defendants Reich and Strutz!
1

It could be argued that Plaintiffs objections specifically objected to Judge Johnston's
Order denying him leave to add additional defendants. (See Doc. 48 at 1 (stating that "Plaintiff
herewith enters this objection IN TOTO to the Order and Recommendation entered in this case
with particular note in respect to not allowing the substitution of true legal names for the
["]John/Jane Does" listed.").) However, the denial of a motion to amend the pleadings is a
nondispositive order under the Magistrates Act. See 28 U.S.C. § 636(b)(l)(A). Accordingly, the
Court reviews the Order denying leave to amend the pleadings for clear error and finds none.
The Court agrees with Judge Johnston that Plaintiffs motion is untimely and should be denied.
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should be granted and his motion for a temporary restraining order should be
denied. First, Plaintiff requested that Defendants Reich and Strutzl be dismissed
and this request was not opposed by Defendants. Second, the motion for a
temporary restraining order should be denied because Plaintiff fails to show a
likelihood of success on the merits. Additionally, the motion impermissibly raises
claims that were not brought forth in the underlying Complaint. Pac. Radiation

Oncology, LLCv. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (holding
"that there must be a relationship between the injury claimed in the motion for
injunctive relief and the conduct asserted in the underlying complaint").
Plaintifrs objections are overruled.
Accordingly, the Court reviews the remainder of Judge Johnston's Findings
and Recommendations for clear error and, finding none,
IT IS ORDERED that:

(1) Judge Johnston's Findings and Recommendations (Doc. 47) are
ADOPTED IN FULL.
(2) Plaintifrs Motion to Dismiss Defendants Billy Reich and Carla Strutzl
(Doc. 39 at~ 2) is GRANTED and these defendants are DISMISSED WITHOUT
PREJUDICE.
(3) Plaintifrs Motion for Temporary Restraining Order (Doc. 44) is
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DENIED.
DATED this

Iq""day of December, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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