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, )

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. § 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
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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.

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(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

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