Schultz v. Averett et al
Filing
108
ORDER ADOPTING REPORT AND RECOMMENDATIONS re 106 Report and Recommendations; granting in part and denying in part 57 Motion to Dismiss filed by the Town of Daniel and Bunker. All claims against Bunker are dismissed with prejudice.. Signed by Judge Jill N. Parrish on 7/29/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CHARLES SCHULTZ,
Plaintiff,
ORDER ADOPTING REPORT AND
RECOMMENDATION
v.
MICHAEL AVERETT, HEATHER
BATEMAN, KASEY BATEMAN, JAY
BINKERD, JONATHAN BLOTTER,
ERIC BUNKER, LYNN CRISLER,
LAMBERT DEEGAN, MICHAEL
DUGGIN, JOHN GLODOWSKI, DIANE
GROSE, DANIEL HARVATH, KIM
NORRIS, ED PRESSGROVE, LANCE
TURNER, PAM SKINNER, LYNNE
SCHINDURLING, FRANCIS SMITH,
GARY WALTON, GARY WEIGHT, THE
TOWN OF DANIEL, and JOHN DOES 1
through 10,
Case No. 2:15-cv-00720-JNP-EJF
Judge Jill N. Parrish
Defendants.
Plaintiff Charles Schultz sued the Town of Daniel and a number of individuals, alleging
that they violated his rights by preventing him from rebuilding a home that was destroyed in a fire.
Defendant Eric Bunker moved to dismiss the claims against him. The Town of Daniel and Bunker
also requested an award of attorney fees. 1 Magistrate Judge Furse issued a Report and
Recommendation suggesting that the motion to dismiss Bunker from this suit be granted and that
the motion for attorney fees be denied. [Docket 106]. Judge Furse notified the parties that a failure
These defendants originally moved to dismiss Schultz’s Eighth Cause of Action, which
asserted a takings claim. But they later withdrew this portion of the motion.
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to file a timely objection to her recommendation could waive any objections to it. No party filed
an objection within the allotted time.
Because no party objected to the Report and Recommendation, any argument that it was in
error has been waived. See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996). The court will decline to apply the waiver rule only if “the interests of justice so
dictate.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). The court has reviewed the
Report and Recommendation and concludes it is not clearly erroneous. Thus, the court finds that
the interests of justice do not warrant deviation from the waiver rule and ADOPTS IN FULL the
Report and Recommendation.
Accordingly, the court ORDERS as follows:
1. The Report and Recommendation [Docket 106] is ADOPTED IN FULL.
2. The motion to dismiss filed by the Town of Daniel and Bunker [Docket 57] is
GRANTED IN PART AND DENIED IN PART. All claims against Bunker are
dismissed with prejudice. The court denies the motion to the extent that it seeks
dismissal of the Eighth Cause of Action and to the extent that the defendants seek an
award of attorney fees.
SO ORDERED July 29, 2019.
BY THE COURT:
______________________________________
JILL N. PARRISH
United States District Judge
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