Christensen v. Smith et al

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; the court hereby APPROVES AND ADOPTS Judge Peads Report and Recommendation in its entirety. If Defendant Ash wishes to file an answer or otherwise respond to Mr. Christensens complaint, he must do so within fourteen (14) days after being served with a copy of this order. Signed by Judge Clark Waddoups on 9/25/15. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEAN H. CHRISTENSEN,
Plaintiff,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION
Case No. 2:14-cv-00784-CW-DBP

GERALD K. SMITH, et al.,
Defendants.

District Judge Clark Waddoups
Magistrate Judge Dustin B. Pead

This case was assigned to United States District Court Judge Clark Waddoups, who then
referred it to United States Magistrate Dustin B. Pead under 28 U.S.C. § 636(b)(1)(B).
(Dkt. No. 13). The case arises out of Dean H. Christensen’s complaint alleging, among other
claims, conspiracy and fraud related to an oil and gas operation. (Dkt. No. 1). Mr. Christensen
served the complaint on one of the defendants, Ray Ash, and obtained a default certificate
against Mr. Ash when Mr. Ash failed to timely respond. (Dkt. No. 7). The Defendants filed a
motion to dismiss, and Mr. Ash supported the motion with a declaration in which he claimed he
had not been served with process. (Dkt. No. 8). Subsequently, Mr. Ash filed a motion to set aside
the default judgment and accompanied it with a second declaration, in which he clarified that he
had been served but mistakenly believed the process was related to a similar lawsuit proceeding
in state court. (Dkt. No. 14).
After briefing from the parties, Judge Pead issued a Report and Recommendation,
recommending that the court grant Mr. Ash’s motion to set aside the default judgment.
(Dkt. No. 25). Judge Pead reasoned that there was good cause to set aside default and that Mr.

Ash’s failure to respond to the complaint appeared to be the result of inadvertence, not
intentional conduct. (Id.) Mr. Christensen has objected to the Report and Recommendation in
this respect, claiming that Mr. Ash committed perjury when he submitted the original declaration
attesting that he had not been served. (Dkt. No. 27).
After conducting a de novo review of the file, the court agrees with Judge Pead’s
thorough and thoughtful Report and Recommendation. In particular, the court notes that contrary
to Mr. Christensen’s contention, Mr. Ash’s second declaration does not reveal Mr. Ash
committed perjury. Rather, the second declaration merely clarifies that Mr. Ash did not initially
believe he had been served with process in this matter because he mistook the process for papers
filed in the related lawsuit. Thus, the court agrees with Judge Pead that Mr. Ash’s failure to
respond to the complaint appears to have been unintentional.
Accordingly, the court hereby APPROVES AND ADOPTS Judge Pead’s Report and
Recommendation in its entirety. If Defendant Ash wishes to file an answer or otherwise respond
to Mr. Christensen’s complaint, he must do so within fourteen (14) days after being served with
a copy of this order.
SO ORDERED this 25th day of September, 2015.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

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