Zemaitiene v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints et al

Filing 67

ORDER ADOPTING 63 REPORT AND RECOMMENDATION: Plaintiff's 40 Motion for Leave to File a Second Amended Complaint is DENIED. Signed by Judge Robert J. Shelby on 7/15/19. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KRISTINA ZEMAITIENE, an individual,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a
Utah corporation doing business as
DESERET INDUSTRIES; and MELANIE
PERRY, an individual;

Case No. 2:16-cv-1271
Chief Judge Robert J. Shelby
Magistrate Judge Evelyn J. Furse

Defendants.
The undersigned referred this case to Magistrate Judge Evelyn J. Furse pursuant to
28 U.S.C. § 636(b)(1)(B).1 On June 14, 2019, Judge Furse issued a Report and
Recommendation2 concerning Plaintiff Kristina Zemaitiene’s Motion for Leave to File a Second
Amended Complaint.3 Judge Furse recommends the court deny Plaintiff’s Motion for two
reasons.4 First, Judge Furse recommends this court find Plaintiff’s “proposed constructive
discharge claim futile because she failed to timely exhaust her administrative remedies with
respect to the claim.”5 Second, Judge Furse recommends this court find Plaintiff’s “request to

1

Dkt. 4.

2

Dkt. 63.

3

Dkt. 40.

4

See Dkt. 63.

5

Id. at 14.

1

include additional supplemental facts underlying her gender discrimination claim as untimely
because she knew or reasonably should have known of the facts at the commencement of this
action nearly three years ago and did not seek to include the facts when granted leave to amend
her Complaint.”6 Neither party objects to Judge Furse’s Report and Recommendation, so the
court reviews the Report and Recommendation for clear error.7
Having carefully considered Judge Furse’s Report and Recommendation, the court finds
no clear error. The court therefore ADOPTS Judge Furse’s Report and Recommendation.8
Plaintiff’s Motion for Leave to File a Second Amended Complaint9 is DENIED.
SO ORDERED this 15th day of July, 2019.
BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States Chief District Judge

6

Id.

See Fed. R. Civ. P. 72(b) advisory committee’s note (1983) (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”) (citing
Campbell v. U.S. Dist. Court for N. Dist. of Cal., 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879); see
also Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district
court may review a magistrate's report under any standard it deems appropriate.”).
7

8

Dkt. 63.

9

Dkt. 40.

2