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)

Download PDF
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. 1 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 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?