Tanne et al v. Commissioner of Internal Revenue Service

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 4 MOTION to accept the complaint as filed with the date of the postmark of the original envelope ; adopting Report and Recommendations re 26 , and deems Mr. and Mrs. Tannes Complaint filed on April 20, 2015. Signed by Judge Robert J. Shelby on 3/29/2016. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JAMES S. TANNE and MEGAN M.
TANNE,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiffs,
v.

Case No. 2:15-cv-00296-RJS

COMMISSIONER OF INTERNAL
REVENUE SERVICE,

Judge Robert J. Shelby

Defendant.

Plaintiffs James S. Tanne and Megan M. Tanne mailed their Complaint to the court on
April 16, 2015.1 On April 20, 2015, the court sent Mr. and Mrs. Tanne a letter explaining that the
Complaint was deficient because it lacked Mrs. Tanne’s original signature.2 Mr. and Mrs. Tanne
then resubmitted their Complaint with both of their signatures. The docket for this case indicates
that the court received the Complaint on April 28, 2015, and that the Clerk of the Court filed it
on April 29, 2015.3
Mr. and Mrs. Tanne then moved the court to accept their Complaint as filed on April 16,
2015, the date Mr. Tanne first mailed the Complaint to the court.4 The case was later referred to
Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C. § 636(b)(1)(B).5
Judge Furse issued a Report and Recommendation on March 9, 2016.6 Judge Furse

1

Dkt. 4.
Id., Ex. 4.
3
Dkt. 3.
4
Dkt. 4.
5
Dkt. 5.
6
Dkt. 38.
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recommended that the court deny Mr. and Mrs. Tanne motion “because no rule or case precedent
provides for backdating the filing of a complaint by a non-incarcerated person to the time of
mailing.”7 But Judge Furse also recommended that the court deem the Complaint filed on April
20, 2015, because the court’s April 20, 2015 letter to Mr. and Mrs. Tanne shows that the court
received Mr. Tanne’s initial filing no later than April 20, 2015.8
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 in which to file an objection.
Neither party has done so. In the absence of an objection, the court may apply a clearly
erroneous standard of review.9 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.’”10
After carefully reviewing the briefing, record, and relevant legal authorities, the court
concludes that Judge Furse did not clearly err in analyzing Mr. and Mrs. Tanne’s motion. The
court therefore ADOPTS the Recommendation, DENIES Mr. and Mrs. Tanne’s motion, and
deems Mr. and Mrs. Tanne’s Complaint filed on April 20, 2015.
SO ORDERED this 29th day of March, 2016.
BY THE COURT:

___________________________
ROBERT J. SHELBY
United States District Judge

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Dkt. 26 at 1.
Id.
9
Thompson v. Astrue, 2010 WL 1944779, at *1 (D. Utah May 11, 2010) (citing 28 U.S.C. § 636(b)(1)).
10
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)).
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