Kelly v. Opportunity Bank, Inc. et al

Filing 10

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS in FULL for 5 Findings and Recommendations. DENYING as moot 6 Motion to Dismiss. Any appeal of this decision would not be taken in good faith. Mailed to Kelly. Signed by Judge Dana L. Christensen on 2/25/2016. (HEG, )

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FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION STEVE KELLY, FEB 2 5 2016 Clerk, U.S Courts District Of Montana Missoula Division CV 15-109-H-DLC-JTJ Plaintiff, ORDER vs. OPPORTUNITY BANK, INC., and APRIL MARSH, Defendants. United States Magistrate Judge John Johnston entered his Order, Findings and Recommendations in this matter on January 12, 2016, recommending dismissal of Plaintiff Steve Kelly's ("Kelly") Complaint. Kelly failed to timely object to the Findings and Recommendations, and so waived his right to de novo review of the record. 28 U.S.C. ยง 636(b)(l)(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. 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) (citations omitted). Having reviewed the Findings and Recommendations, the Court finds no -1- clear error in Judge Johnston's conclusion that Kelly's Complaint should be dismissed because it fails to name a government entity and, as a result, the Court lacks subject matter jurisdiction. Further, the Court agrees that Kelly's Complaint fails to state a claim for relief and cannot be cured by amendment. Kelly simply cannot bring forth facts supporting a cause of action for privacy violations. Additionally, following the issuance of Judge Johnston's Findings and Recommendations, Defendants moved to dismiss Kelly's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(4), (5), and (6). Because the Court will adopt the recommendation to dismiss this case with prejudice, the Court will deny this motion as moot. IT IS ORDERED that: (1) Judge Johnston's Findings and Recommendations (Doc. 5) are ADOPTED IN FULL. (2) Plaintiff Steve Kelly's Complaint (Doc. 2) is DISMISSED with prejudice. The Clerk of Court is directed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. (3) The Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. -2- (4) Defendants' Motion to Dismiss (Doc. 6) is DENIED as moot. Dated this J4~ay of February, 2016. Dana L. Christensen, Chief Judge United States District Court -3-

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