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

Filing 113

MEMORANDUM DECISION AND ORDER ADOPTING 104 REPORT AND RECOMMENDATIONS to grant 22 Motion to Dismiss for Failure to State a Claim as to all claims against Ms. Coil being dismissed without prejudice; the request for award of attorney fees is denied. 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 [104] 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 12, 2018 recommends 2 that Plaintiff Parker Malmstrom’s perjury, witness
tampering, First, Sixth, Ninth, and Fourteenth Amendment claims 3 against Defendant Jill Coil be
dismissed without prejudice for failure to state a claim. Magistrate Judge Furse also
recommends 4 that Plaintiff Parker Malmstrom’s defamation, unjust enrichment, and breach of
fiduciary duty claims 5 against Ms. Coil be dismissed without prejudice for lack of subject matter

1

Report and Recommendation: Jill Coil’s Motion to Dismiss (ECF No. 42), docket no. 104, filed January 12, 2017.

2

Id. at 11–12.

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 Jill Coil.
4

Id. at 12.

5

See supra note 4.

jurisdiction. The Report and Recommendation declined to award the attorney fees that Defendant
Coil requested in her motion to dismiss.6
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. 7 As Plaintiffs were mailed a copy of the Report and Recommendation, they were provided an
additional three days to file their objection under Fed. R. Civ. P. 6(d). The last day of the 17 day
period to file an objection was Monday, January 29, 2018.
On Tuesday, January 30, 2018, Plaintiffs filed a document entitled “Objection to
Magistrate’s Decision and Order Or Motion to Set Aside Magistrate’s [sic].” 8 The document
does not specify—and it is not possible to find any clue—if this Report and Recommendation is
the subject of the objection. In addition to the lack of specificity, the filing 9 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, 10 and because the analysis and conclusion of the
Magistrate Judge are sound, the Report and Recommendation 11 is adopted in its entirety.

6

See Rule 12(B)(6) Motion to Dismiss at 3, docket no. 22, filed June 8, 2017.

7

See Report and Recommendation at 12.

8

Docket no. 107, filed January 30, 2018.

9

Id.

10

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

11

Report and Recommendation: Jill Coil’s Motion to Dismiss (ECF No. 42), docket no. 104, filed January 12, 2017.

2

ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 12 is ADOPTED and
the Motion to Dismiss 13 Defendant Jill Coil is GRANTED IN PART as to the dismissal of all
claims against Ms. Coil without prejudice and DENIED IN PART as to the request for an award
of attorney fees.
Signed February 7, 2018.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

12

Report and Recommendation: Jill Coil’s Motion to Dismiss (ECF No. 42), docket no. 104, filed January 12, 2017.

13

Rule 12(B)(6) Motion to Dismiss, docket no. 22, filed June 8, 2017.

3