Brown v. Canyons School District et al

Filing 44

MEMORANDUM DECISION AND ORDER 38 ADOPTING REPORT AND RECOMMENDATIONS: adopting Report and Recommendations to deny 29 Motion to Dismiss and 30 Motion for Partial Summary Judgment. Signed by Judge David Nuffer on 9/22/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THOMAS BROWN, for C.B., a minor,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Case No. 2:16-cv-00270-DN-PMW
CANYONS SCHOOL DISTRICT, a Utah
governmental entity; JOHN CARRELL,
an individual; and JOHN DOES I-V,

District Judge David Nuffer
Magistrate Judge Paul M. Warner

Defendants.
The Report and Recommendation 1 issued by United States Magistrate Judge Paul M.
Warner on September 7, 2017 recommends denial of Defendant John Carrell’s Motion to
Dismiss 2 and Plaintiff’s Motion for Partial Summary Judgment. 3
De novo review has been completed of those portions of the report, proposed findings
and recommendations to which objection was made, including the record that was before the
Magistrate Judge and the reasoning set forth in the Report and Recommendation. 4
Mr. Carrell objects 5 to the recommendation to deny his Motion to Dismiss. His motion
sought dismissal as sanction under rules 37(b)(2)(A) and 41(b) of the Federal Rules of Civil
Procedure due to Plaintiff’s alleged failure to provide initial disclosures and prosecute the case in

1

Report and Recommendation, docket no. 38, filed September 7, 2017.

2
Defendant John Carrell’s Notice of Motion and Motion to Dismiss Plaintiff’s Action; Memorandum of Points and
Authorities in Support Thereof; And Declaration in Support Thereof, docket no. 29, filed November 9, 2016.
3

Plaintiff’s Motion for Partial Summary Judgment, docket no. 30, filed November 11, 2016.

4

28 U.S.C. § 636(b).

5

Objection to Report and Recommendation and Motion to Reconsider (“Objection”), docket no. 42, filed September
22, 2017

a timely fashion. 6 In the Report and Recommendation, Judge Warner considered this request
using five factors specified by the 10th Circuit in LaFleur v. Teen Help. 7 According to the 10th
Circuit:
Dismissal is a severe sanction; therefore, it should be imposed only if a lesser
sanction would not serve the ends of justice. The district court should consider the
following factors when considering whether dismissal is an appropriate sanction:
(1) the degree of actual prejudice to the opposing party, (2) the degree of
interference with the judicial process, (3) the litigant’s culpability, (4) whether the
litigant was warned in advance that dismissal was a likely sanction, and (5)
whether a lesser sanction would be effective. 8
Instead of offering distinguishing legal precedent as support for substantive objections,
Mr. Carrell “respectfully disagree[s]” 9 with Judge Warner’s recommendation, providing
variations on the same information he included in the original Motion to Dismiss. This
information was thoroughly considered by Judge Warner through the application of the
aforementioned LaFleur factors.
The analysis and conclusion of the Magistrate Judge are correct. Therefore, the analysis
and conclusion of the Magistrate Judge are accepted and the Report and Recommendation 10 is
adopted.

6

Report and Recommendation at 4.

7

Id.

8

LaFleur v. Teen Help, 342 F.3d 1145, 1151 (10th Cir. 2003) (quotations and citations omitted).

9

See Objection at ¶4, 7, and 12.

10

Report and Recommendation, docket no. 38, filed September 7, 2017.

2

ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 11 is ADOPTED, and
Defendant’s Motion to Dismiss 12 is DENIED and Plaintiff’s Motion for Partial Summary
Judgment 13 is DENIED.
Signed September 22, 2017.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

11

Report and Recommendation, docket no. 38, filed September 7, 2017.

12

Defendant John Carrell’s Notice of Motion and Motion to Dismiss Plaintiff’s Action; Memorandum of Points and
Authorities in Support Thereof; And Declaration in Support Thereof, docket no. 29, filed November 9, 2016.
13

Plaintiff’s Motion for Partial Summary Judgment, docket no. 30, filed November 11, 2016.

3