On Demand Direct Response, LLC et al v. McCart-Pollak

Filing 171

ORDER accepting and adopting ECF No. #161 Report and Recommendation; dismissing Plaintiffs' claims against Defendant Shana Lee McCart-Pollak for failure to prosecute; and denying as moot ECF No. #167 Motion to Dismiss. Signed by Judge Miranda M. Du on 5/24/16. (Copies have been distributed pursuant to the NEF - JC)

1
2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

***

5
6

ON DEMAND DIRECT RESPONSE, LLC
AND ON DEMAND DIRECT RESPONSE
III, LLC,
Plaintiffs,

7
v.
8
9

SHANA LEE MCCART-POLLACK D/B/A
LOL BUDDIES ENTERPRISES,

10

Defendants.

11

SHANA LEE MCART-POLLAK,
Defendant/Counter Claimant,

12
13
14
15

v.
ON DEMAND DIRECT RESPONSE LLC,
A Delaware company; ON DEMAND
DIRECT RESPONSE III, LLC, a Delaware
Company,

16
Plaintiff/Counter-Defendants.
17
18
19
20
21
22
23
24
25
26
27
28

SHANA LEE MCCART-POLLAK,
Defendant/Third Party Plaintiff,
v.
KEVIN HARRINGTON, an individual,; AS
SEEN ON TV, INC., a Florida company;
SPIRAL TOYS LLC, a California company;
MARK MEYERS, an individual; DRAGON-I
TOYS LTD, California company; JAT AT
PLAY INTERNATIONAL, a New York
company; DIGITAL TARGET
MARKETING, a Florida company;
HUTTON MILLER, a Florida company;
ECHO FACTORY, a California company;
DOES I-S; ROE Business Entities I-X,
Third-Party Defendants.

Case No. 2:15-cv-01576-MMD-VCF
ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
CAM FERENBACH

1

Before the Court is the Report and Recommendation of United States Magistrate

2

Judge Cam Ferenbach (ECF No. 161) (“R&R”), submitted on April 28, 2016, relating to

3

the Court’s February 5, 2016, order requiring Plaintiffs On Demand Direct Response,

4

LLC an On Demand Direct Response III, LLC (“Plaintiffs”) to retain counsel by March 7,

5

2016. (See ECF No. 99.) The R&R recommends dismissal of Plaintiffs’ claims. (ECF

6

No. 161.) Plaintiffs had until May 15, 2016, to file objections. (Id.) To date, no objection

7

to the R&R has been filed.

8

This Court “may accept, reject, or modify, in whole or in part, the findings or

9

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

10

timely objects to a magistrate judge’s report and recommendation, then the court is

11

required to “make a de novo determination of those portions of the [report and

12

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

13

to object, however, the court is not required to conduct “any review at all . . . of any issue

14

that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

15

Indeed, the Ninth Circuit has recognized that a district court is not required to review a

16

magistrate judge’s report and recommendation where no objections have been filed. See

17

United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard

18

of review employed by the district court when reviewing a report and recommendation to

19

which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

20

1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

21

view that district courts are not required to review “any issue that is not the subject of an

22

objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

23

the court may accept the R&R without review. See, e.g., Johnstone, 263 F. Supp. 2d at

24

1226 (accepting, without review, a magistrate judge’s recommendation to which no

25

objection was filed).

26

Nevertheless, this Court finds it appropriate to engage in a de novo review to

27

determine whether to adopt Magistrate Judge Ferenbach’s R&R. Upon reviewing the

28

///
2

1

R&R and the records in this case, this Court finds good cause to adopt the Magistrate

2

Judge’s R&R in full.

3

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

4

Recommendation of Magistrate Judge Cam Ferenbach (ECF No.161) is accepted and

5

adopted in its entirety.

6
7
8
9
10

It is further ordered that Plaintiffs’ claims against Defendant Shana Lee McCartPollak are dismissed with prejudice for failure to prosecute.
It is further ordered that Defendant/Third Party Plaintiff Shana Lee McCartPollak’s motion to dismiss (ECF No. 167) is denied as moot.
DATED THIS 24th day of May 2016.

11
12
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3