Malmstrom v. State of Utah Department of Children and Families et al

Filing 111

MEMORANDUM DECISION AND ORDER ADOPTING 102 REPORT AND RECOMMENDATIONS to grant 11 Motion to Dismiss for Failure to State a Claim: Parker Malmstrom's claims against Nancy Trotter, Thomas Malmstrom, and David Blum are dismissed without prejudice. Signed by Judge David Nuffer on 2/7/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
PARKER MALMSTROM and CRYSTAL
MALMSTROM,

MEMORANDUM DECISION AND
ORDER ADOPTING [102] REPORT
AND RECOMMENDATION

Plaintiffs,
v.

Case No. 1:17-cv-80-DN-EJF

STATE OF UTAH DEPARTMENT OF
CHILDREN AND FAMILIES, et al.,

District Judge David Nuffer
Magistrate Judge Evelyn J. Furse

Defendants.
The Report and Recommendation 1 issued by United States Magistrate Judge Evelyn J.
Furse on January 11, 2018 recommends 2 that all of Plaintiff Parker Malmstrom’s claims 3 against
Nancy Trotter, Thomas Malmstrom, and David Blum be dismissed without prejudice for lack of
subject matter jurisdiction. 4
The parties were notified of their right to file objections to the Report and
Recommendation within 14 days of its service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72. 5 As Plaintiffs were mailed a copy of the Report and Recommendation, they were provided an

1

Report and Recommendation: David Blum, Thomas Malmstrom & Nancy Trotter’s Motion to Dismiss (ECF No.
11), docket no. 102, filed January 11, 2017.

2

Id. at 12.

3

Pro se Plaintiff Parker Malmstrom filed his Complaint on May 16, 2017. See Complaint, docket no. 1, filed May
17, 2017. He then filed an Amended Complaint on May 16, 2017. See Amended Complaint, docket no. 3, filed May
23, 2017. The Amended Complaint joined his mother, Crystal Malmstrom, as a Plaintiff. See Id. At Oral Argument,
Crystal Malmstrom clarified that she is only bringing claims against Defendant Jacob Smith. See Minute Order,
Proceedings held before Magistrate Judge Evelyn J. Furse: Motion Hearing, docket no. 88, filed September 12,
2017. Because of this clarification, the Report and Recommendation only address Parker Malmstrom’s claims
against Nancy Trotter, Thomas Malmstrom, and David Blum.
4

See Defendants Blum, Malmstrom and Trotter’s Motion to Dismiss, docket no. 11, filed June 1, 2017.

5

See Report and Recommendation at 12.

additional three days to file their objection under Fed. R. Civ. P. 6(d). Because the last day of the
17 day period to file an objection would have been Sunday, January 28, 2018, the objection
period was extended one day until the end of Monday, January 29, 2018 under Fed. R. Civ. P.
6(a)(1)(C).
On January 30, 2018, Plaintiffs filed a document entitled “Objection to Magistrate’s
Decision and Order Or Motion to Set Aside Magistrate’s.” 6 The document does not specify
which Report and Recommendation is the subject of the objection and it does not appear to deal
with subjects in this Report and Recommendation. In addition to the lack of specificity, the
filing 7 is untimely as to this Report and Recommendation. Because no party filed a timely
written objection to the Report and Recommendation as provided by court rules, 8 and because
the analysis and conclusion are sound, the Report and Recommendation 9 is adopted in its
entirety.

6

Docket no. 107, filed January 30, 2018.

7

Id.

8

See 28 U.S.C. § 636 and Fed. R. Civ. P. 72

9

Report and Recommendation: David Blum, Thomas Malmstrom & Nancy Trotter’s Motion to Dismiss (ECF No.
11), docket no. 102, filed January 11, 2017.

2

ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 10 is ADOPTED and
Defendants Blum, Malmstrom and Trotter’s Motion to Dismiss 11 is GRANTED. Plaintiff Parker
Malmstrom’s claims against Nancy Trotter, Thomas Malmstrom, and David Blum are dismissed
without prejudice for lack of subject matter jurisdiction.
Signed February 7, 2018.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

10

Report and Recommendation: David Blum, Thomas Malmstrom & Nancy Trotter’s Motion to Dismiss (ECF No.
11), docket no. 102, filed January 11, 2017.
11

Defendants Blum, Malmstrom and Trotter’s Motion to Dismiss, docket no. 11, filed June 1, 2017.

3