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)

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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

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