Smith v. Limerick

Filing 140

ORDER: Adopting Findings and Recommendation 135 . Plaintiff's Motion for Relief 127 is DENIED. Defendant's Motion to Dismiss and to Strike 130 is GRANTED in part and DENIED in part as set forth in the F&R. Signed on 9/1/2021 by Judge Ann L. Aiken. (ck)

Case 1:17-cv-00712-CL

Document 140

Filed 09/01/21

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

G. SMITH,
Plaintiff,
v.

No. 1:17-cv-00712-CL
ORDER

JILL LIMERICK,
Defendant.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on a Findings and Recommendation filed by
Magistrate Judge Mark Clarke on June 28, 2021. ECF No. 135. Judge Clarke
recommends that Plaintiff’s Motion for Relief from this Court’s prior order, ECF No.
127, be denied. Judge Clarke also recommends that Defendant’s Motion to Dismiss
and Motion to Strike, ECF No. 130, be granted in part and denied in part.
Under the Federal Magistrates Act, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”

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Case 1:17-cv-00712-CL

Document 140

Filed 09/01/21

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28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s findings and
recommendations, “the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to
which neither party has objected, the Act does not prescribe any standard of review.
See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress,
in enacting [the Act], intended to require a district judge to review a magistrate’s
report to which no objections are filed.”). Although no review is required in the
absence of objections, the Magistrates Act “does not preclude further review by the
district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The
Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely
objection is filed,” the court should review the recommendation for “clear error on the
face of the record.”
In this case, Plaintiff has filed Objections, ECF No. 138.

The Court has

reviewed the record and the disputed portions of the F&R and finds no error. The
F&R, ECF No. 135, is ADOPTED. Plaintiff’s Motion for Relief, ECF No. 127, is
DENIED. Defendant’s Motion to Dismiss and to Strike, ECF No. 130, is GRANTED
in part and DENIED in part as set forth in the F&R.
1st
It is so ORDERED and DATED this ___ day of September 2021.

/s/Ann Aiken
ANN AIKEN
United States District Judge
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