Langley et al v. Jones et al

Filing 61

ORDER - Judge Papak's Findings and Recommendation 58 is ADOPTED. Plaintiffs' Motion for Leave to File Amended Complaint/Petition 51 is DENIED. Plaintiffs' Motion for Leave to File Second Amended Complaint 56 is also DENIED as moot. Plaintiffs have thirty days from the date of this order to amend their complaint to allege facts sufficient to cure the jurisdictional infirmities identified by Judge Papak in his Findings and Recommendation 58 and in his prior Findings and Recommendation 31 . Signed on 6/5/12 by Judge Michael H. Simon. (mja)

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

IVAN B. LANGLEY and KARLEE E.
LANGLEY,
Plaintiffs,
v.

SHRILY E. JONES and CHARLEE A.
PHILLIPS, JR.,
Defendants.

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No.2:11-CV-00774-PK

ORDER ADOPTING FINDINGS AND
RECOMMENDATION

SIMON, District Judge.
On May 18,2012, Magistrate Judge Paul Papak issued Findings and Recommendation
(#58) in the above-captioned case. Judge Papak recommended that Plaintiffs' first motion for
leave to amend their pleading (#51) be denied on grounds of futility and that their second motion
for leave to amend (#56) be denied as moot because it appears to be identical to their first-filed
motion. Judge Papak also recommended, however, that Plaintiffs be granted an additional period
of thirty days within which to amend their complaint to allege facts sufficient to cure the
jurisdictional infmnities identified by Judge Papak. Neither party has filed objections to Judge
Papak's Findings and Recommendation.

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." Federal Magistrates Act, 28
U.S.C. § 636(b)(l). If a party files objections to a magistrate'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).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard of
review. In such cases, "[t]here is no indication that Congress, in enacting [the Magistrates Act],
intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474 U.S.
140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

bane) (the court must review de novo the magistrate's findings and recommendations if objection
is made, "but not otherwise").
Although in the absence of objections no review is required, the Magistrates Act "does
not preclude further review by the district judge[] sua sponte . .. under a de novo or any other
standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Federal Rule of
Civil Procedure neb) recommend that "[w]hen no timely objection is filed," the court review the
magistrate's findings and recommendations for "clear error on the face ofthe record."
No party having made objections, this court follows the recommendation of the Advisory
Committee and reviews Judge Papak's Findings and Recommendation for clear error on the face
of the record. No such error is apparent. Therefore the court orders that Judge Papak's Findings
and Recommendation (#58) is ADOPTED. Plaintiffs' Motion for Leave to File Amended
ComplaintlPetition (#51) is DENIED. Plaintiffs' Motion for Leave to File Second Amended
Complaint (#56) is also DENIED as moot. Plaintiffs have thirty days from the date ofthis order

ORDER - Page 2

to amend their complaint to allege facts sufficient to cure the jurisdictional infirmities identified
by Judge Papak in his Findings and Recommendation (#58) and in his prior Findings and
Recommendation (#31).
Dated this 5th day of June, 2012.

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Michael H. Simon
United States District Judg~

ORDER - Page 3