Dziurkiewicz et al v. Dziurkiewicz
Filing
41
ORDER ADOPTING REPORT AND RECOMMENDATIONS re 40 Report and Recommendations ; denying 38 Motion for Summary Judgment; denying 39 Motion for Sanctions; granting 35 Motion to Dismiss. Magistrate Judge Brooke C. Wells no longer assigned to case. Case Closed. Signed by Judge Robert J. Shelby on 6/8/2016. (jds)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
WILLIAM STANLEY DZIURKIEWICZ and
MELISSA GAIL DZIURKIEWICZ,
ORDER ADOPTING REPORT AND
RECOMMENDATION
Plaintiffs,
v.
Case No. 2:12-cv-00907-RJS
ELIZABETH MARIE DZIURKIEWICZ,
Judge Robert J. Shelby
Defendant.
Pro se Plaintiffs William and Melissa Dziurkiewicz sued pro se Defendant Elizabeth
Dziurkiewicz for libel, slander, and fraud.1 Plaintiffs allege that Defendant’s tortious conduct has
cost Plaintiffs’ businesses millions of dollars in lost profits. None of Plaintiffs’ businesses are a
party in this case. Defendant has filed a Motion to Dismiss for lack of personal and subject
matter jurisdiction.2 Meanwhile, Plaintiffs have filed a Motion for Summary Judgment3 and a
Motion for Sanctions.4 The court referred the case to Magistrate Judge Brooke Wells pursuant to
28 U.S.C. § 636(b)(1)(B).5
Judge Wells issued a Report and Recommendation on May 23, 2016.6 Judge Wells first
recommended that the court dismiss Plaintiffs’ operative Complaint with prejudice and grant
Defendant’s Motion to Dismiss for lack of personal jurisdiction. Judge Wells explained that
Plaintiffs’ operative pleading “is devoid of any factual detail aimed at or involving Utah and
1
Dkt. 16.
Dkt. 35.
3
Dkt. 38.
4
Dkt. 39.
5
Dkt. 23.
6
Dkt. 40.
2
1
there are simply no allegations or indications that [Defendant] deliberately directed its message
at an audience in Utah and intended harm to the Plaintiff[s] occurring primarily or particularly in
Utah.”7 Judge Wells also recommended that the court alternatively dismiss the case for lack of
subject matter jurisdiction because it is unclear whether there is complete diversity between the
parties. For instance, at least one of Plaintiffs’ companies that have allegedly suffered damages
due to Defendant’s conduct is a “citizen” of the same state as Defendant.8 Finally, Judge Wells
recommended that the court deem Plaintiffs’ Motion for Summary Judgment and Motion for
Sanctions moot.9
Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party has
fourteen days from receipt of a Report and Recommendation to file an objection. Neither party
has done so. In the absence of an objection, the court applies a clearly erroneous standard of
review.10 Under this deferential standard, the court will affirm a Magistrate Judge’s ruling unless
the court “‘is left with the definite and firm conviction that a mistake has been committed.’”11
After carefully reviewing the briefing, record, and relevant legal authorities, the court
concludes that Judge Wells did not clearly err in ruling on the current motions. As a result, the
court ADOPTS the Recommendation and GRANTS Defendant’s Motion to Dismiss for lack of
personal and subject matter jurisdiction. (Dkt. 35.) Plaintiffs’ Third Amended Complaint is
dismissed WITH PREJUDICE. And Plaintiffs’ Motion for Summary Judgment and Motion for
Sanctions are DENIED as MOOT. The Clerk of Court is directed to close the case.
SO ORDERED this 8th day of June, 2016.
7
Id. at 5.
Id. at 6–7.
9
Id. at 7.
10
Thompson v. Astrue, 2010 WL 1944779, at *1 (D. Utah May 11, 2010) (citing 28 U.S.C. § 636(b)(1)).
11
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)).
8
2
BY THE COURT:
___________________________
ROBERT J. SHELBY
United States District Judge
3
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