Christensen v. Smith et al

Filing 74

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting in part and denying in part 33 Motion to Dismiss for Failure to State a Claim ; denying 57 Motion for Entry of Default; denying 57 Motion for Sanctions; adopting Report and Recommendations re 64 Report and Recommendations.; granting in part and denying in part 66 Motion to Dismiss for Failure to State a Claim ; granting in part and denying in part 68 Motion for Extension of Time; denying as moot 71 Motion to Amend/Correct; granting 73 Motion to Withdraw. If Plaintiff wishes to submit a renewed motion to amend, he must do so within 45 days of this order. Signed by Judge Clark Waddoups on 6/15/16. (jmr)

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

DEAN H. CHRISTENSEN,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Case No. 2:14-cv-00784-CW-DBP
GERALD K. SMITH, et al.,
District Judge Clark Waddoups
Defendants.
Magistrate Judge Dustin B. Pead

The case arises out of Plaintiff’s claims against Defendants for RICO conspiracy,
racketeering, fraud, and defamation. The 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).
Defendants filed a motion to dismiss Plaintiff’s amended complaint with prejudice,
asserting that Plaintiff has improperly pled the necessary elements of his RICO claims. They also
ask the court to dismiss the state-law fraud and defamation claims with prejudice for lack of
supplemental subject-matter jurisdiction. (Dkt. No. 33).1 Plaintiff opposes the motion to dismiss,
(Dkt. No. 34) and has filed a motion for entry of default judgment against Defendant Ray Ash
(Dkt. No. 57). Plaintiff also asks the court to sanction Defendants’ counsel. (Id.).
Judge Pead issued a Report and Recommendation, recommending the court grant the
motion to dismiss but permit Plaintiff to submit a second amended complaint. (Dkt. No. 64).
Judge Pead also recommended denying the motion for default judgment and for sanctions. (Id.).
Plaintiff did not object to the Report and Recommendation, but he did file a motion for extension
1

Defendant Rod Eson filed a motion to dismiss in which he joined in Defendants’ motion. (Dkt. No. 66).

of time to file a second amended complaint. (Dkt. No. 68). Specifically, he seeks an additional
60 days from the approval of the Report and Recommendation to submit an amended complaint.
(Id.). Plaintiff also filed a motion to amend/correct his complaint, but subsequently filed a
motion to withdraw that motion. (Dkt. Nos. 71, 73).
The court has carefully considered the Report and Recommendation de novo, and agrees
with Judge Pead’s careful analysis of the issues presented. Accordingly, the Report and
Recommendation is approved and adopted in its entirety. The court GRANTS in part and
DENIES in part the motions to dismiss (Dkt. Nos. 33, 66) and DENIES the motion for default
judgment and sanctions (Dkt. No. 57). Plaintiff’s claims are dismissed without prejudice to
refiling.
The court also GRANTS Plaintiff’s motion to withdraw his motion to amend (Dkt. No.
73), and DENIES the motion to amend/correct (Dkt. No. 71) as moot. Finally, the court
GRANTS in part and DENIES in part Plaintiff’s motion for extension of time (Dkt. No. 68). If
Plaintiff wishes to submit a renewed motion to amend, he must do so within 45 days of this
order.
SO ORDERED this 15th day of June, 2016.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

2