Reed et al v. Ellison et al

Filing 13

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 11 Findings and Recommendations. This matter is DISMISSED without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. However, this dismissal shall not operate as an adjudicati on on the merits of Reed's claims. The Clerk of Court is directed to terminate all pending motions and close this matter. Signed by Judge Donald W. Molloy on 12/8/2011. (APP, ) Modified on 12/8/2011 to reflect copy mailed to Reed this date (APP, ).

FILED
DEC 08 2011
PATRICK E. DUFFY. CLERK
By"'oe""P\JTYU=":"CLE=RK".Mt;-";So.;SOU;;;;uLA"-­

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

JOHN REGINALD REED,
PATRICIA ANN REED, and
CHARLES ADAM FIECHfNER. SR.,
Plaintiffs,
vs.
MISSOULA HOUSING AUIHORITY
EMPLOYEES: JOHN ELLISON,
AMELIA LYON, and MARY MELTON,
Defendants.

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CV 11-102-M-DWM-JCL

ORDER

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Magistrate Judge Jeremiah Lynch entered Findings and Recommendations
in this matter on November 21, 2011 (dkt # 11). He recommended this action be
dismissed without prejudice due to Plaintiff Patricia Reed's failure to comply with
his October 12,2011 Order (dkt # 8).1 Because Reed's original complaint failed
IThe claims of Plaintiffs John Reed and Charles Fiechtner, Sr. were dismissed November
1,2011 for failure to pay the filing fee or file for leave to proceed in forma pauperis.

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to identifY the alleged basis for this dourt's jurisdiction, she was ordered to file an
amended complaint by November 10,2012. She did not do so.
Reed filed objections to Judge Lynch's Findings and Recommendations on
December 6, 2011 (dkt # 12). She is thus entitled to de novo review ofthe
specified findings or recommendations to which she objects. 28 U.S.C. §
636(b)(1).
Reed argues the proper venue for her case is in the Helena Division.
However, as explained by Judge Keith Strong in his Order transferring the case to
Missoula (dkt # 4), venue is proper in any Division ofthe Court containing a
county of proper venue under Montana law. Under Montana law, the proper
venue for actions against public officers and their agents is the county where the
cause or some part ofthe cause of action arose. Mont Code Ann. § 25-2-125. As
Reed's claims arose in Missoula, venue is proper in the Missoula Division of this
Court.
Reed also contests Judge Lynch's authority to enter Findings and
Recommendations in this matter. The appointtnent and authority ofUnited States
magistrate judges is described in 28 tJ.S.C. § 631 et seq. Judge Lynch properly
exercised his authority under 28 U.S~C. § 636(b Xl}.
The Court notes that Reed raises new factual allegations that were not
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included in her Complaint. A districl court may, but is not required, to consider
evidence presented for the first time in objections to a magistrate judge's findings
and recommendations. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir.2002).
Because Reed still fails to explain the jurisdictional basis of her complaints, this
Court declines to consider the new allegations.
When a plaintiff fails to prosecute a case or comply with a court order, the
court may dismiss the case under Rule 41 (b). Several factors support dismissal
here: the public's interest in expeditious resolution of litigation, the court's need to
manage its docket; the risk ofprejudice to the defendants; and the availability of
less drastic alternatives. Pagtalunan Y. Gah!7a, 291 F.3d 639, 642 (9th Cir. 2002).

In his October 12,2011 Order, Judge Lynch described in detail the jurisdictional
defects in Reed's complaint and provided her the opportunity to amend her
complaint. He also recommended that her claims be dismissed without prejudice
to allow for the potential disposition of the claims on their merits in the future.
This Court finds no clear error in Judge Lynch's balancing ofthe factors weighing
for and against the dismissal of Reed's claims.
Accordingly, IT IS HEREBY ORDERED:

1. Judge Lynch's Findings and Recommendation (dkt # 11) are ADOPTED.
2. This matter is DISMISSED without prejudice pursuant to Rule 41(b) of
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the Federal Rules of Civil Procedure. However, this dismissal shall not operate as
an adjudication on the merits of Reed's claims. The Clerk of Court is directed to
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tenninate all pending motions and close this matter.

.,.,.,..
Dated this Kday of December, 201 L

Donald ~ Mo loy, District Judge
United / tes strict Court
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