Rusk v. Cowboy Properties

Filing 76

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting Report and Recommendations re 69 Report and Recommendations; granting in part and denying in part 32 Motion to Dismiss for Failure to State a Claim and 32 Motion for More D efinite Statement. The court orders Mr. Rusk to provide a more definite statement. Mr. Rusk may file a Second Amended Complaint no later than fourteen (14) days after being served with a copy of this Order. Signed by Judge Robert J. Shelby on 2/24/2017. (jds)

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

ZACKARY R. E. RUSK,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
COWBOY PROPERTIES,
Case No. 2:16-cv-00204-RJS-DBP
Defendant.
Judge Robert J. Shelby
Magistrate Judge Dustin B. Pead
This case was referred to Magistrate Judge Dustin Pead pursuant to 28 U.S.C.
§ 626(b)(1)(B). In his Amended Complaint, Plaintiff Zackary Rusk alleges Defendant Cowboy
Properties unlawfully refused to rent him an apartment and retaliated against him after he filed a
housing discrimination claim.1 Defendant’s Second Motion to Dismiss for Failure to State a
Claim or Motion for a More Definite Statement is now before the court.2
Judge Pead issued a Report and Recommendation on November 23, 2016, recommending
the court grant in part and deny in part Defendant’s Motion and order Mr. Rusk to provide a
more definite statement.3 Neither party submitted an objection to the Report and
Recommendation within the time allotted.4 In the absence of an objection, the court may apply a
“clearly erroneous” standard of review when evaluating a Report and Recommendation. Under

1

Dkt. 29.

2

Dkt. 32.

3

Dkt. 69.

4

See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)–(c) (allowing parties fourteen days to file an objection to a
report and recommendation from a magistrate judge).

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this standard, the court “will affirm the Magistrate Judge’s ruling unless [the court] . . . is left
with the definite and firm conviction that a mistake has been committed.”5
After reviewing the briefing, record, and relevant legal authorities, the court concludes
that Judge Pead did not clearly err in his analysis. The court therefore ADOPTS the Report and
Recommendation, and grants in part and denies in part Defendant’s Motion. (Dkt. 32.) The court
orders Mr. Rusk to provide a more definite statement. As stated in the Report and
Recommendation, Mr. Rusk may file a Second Amended Complaint, which provides additional
detail concerning dates of his alleged protected conduct and Defendant’s allegedly
discriminatory actions, no later than fourteen (14) days after being served with a copy of this
Order.
Mr. Rusk filed a document styled “Reply to docket #69 R&R” on November 28, 2016.6
It appears Mr. Rusk intended this document to provide the additional details suggested by the
Report and Recommendation. To the extent it purports to do so, however, it is premature
because the Report and Recommendation had yet to be adopted. The court clarifies that
Mr. Rusk must file a Second Amended Complaint with the required detailed information within
fourteen days of this Order.
SO ORDERED this 24th day of February, 2017.
BY THE COURT:

__________________________
ROBERT J. SHELBY
United States District Judge

5

Thompson v. Astrue, 2010 WL 1944779, at *1 (D. Utah May 11, 2010) (internal quotation marks and citations
omitted).
6
Dkt. 70.

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