Castellano v. Brigham Young University et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION and Dismissing Complaint With Prejudice. The court ADOPTS the Report and Recommendation and GRANTS defendants' Motion to Dismiss the Amended Complaint. The court ORDERS that Castellano's action be DISMISSED WITH PREJUDICE. Signed by Judge Jill N. Parrish on 9/6/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JOSEPH CASTELLANO,
Plaintiff,
v.
BRIGHAM YOUNG UNIVERSITY, SCOTT
ELKINS, Managing Director of HR, and
DAVID TUELLER,
Defendants.

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING COMPLAINT WITH
PREJUDICE

Case No. 2:16-CV-01205
District Judge Jill N. Parrish

Defendants moved to dismiss the Amended Complaint on January 11, 2018 (ECF No. 29).
Plaintiff responded on February 12, 2018 (ECF No. 30), and Defendants filed a reply on February
22, 2018 (ECF No. 31). On August 16, 2018, Magistrate Judge Furse issued a Report and
Recommendation (ECF No. 35) that Castellano’s Amended Complaint be dismissed for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Judge Furse further
recommended that such dismissal be granted with prejudice because any amendment would be
futile.
Castellano did not file an objection to the Report and Recommendation, and therefore
waived any argument that it was in error. 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 that it is not clearly erroneous and finds
that the interests of justice do not warrant deviation from the waiver rule.

Accordingly, the court ADOPTS the Report and Recommendation and GRANTS
defendants’ Motion to Dismiss the Amended Complaint. The court ORDERS that Castellano’s
action be DISMISSED WITH PREJUDICE.

Signed September 6, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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