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Gibson v. Credit Suisse AG.

United States District Court, D. Idaho

September 19, 2014

L.J. GIBSON, BEAU BLIXSETH; AMY KOENIG, VERN JENNINGS, MARK MUSHKIN, MONIQUE LEFLEUR, and GRIFFEN DEVELOPMENT, LLC, JUDY LAND, and CHARLES DOMINGUEZ each individually, and on behalf of other similarly situated, Plaintiffs,
v.
CREDIT SUISSE AG. a Swiss corporation; CREDIT SUISSE SECURITIES (USA). LLC, a Delaware limited liability company, CREDIT SUISSE FIRST BOSTON, a Delaware limited liability corporation; CREDIT SUISSE CAYMAN ISLAND BRANCH, an entity of unknown type; CUSHMAN & WAKEFIELD, INC., a Delaware corporation and DOES 1 through 100 inclusive, Defendants.

ORDER ON REPORT AND RECOMMENDATION

EDWARD J. LODGE, District Judge.

INTRODUCTION

On July 31, 2014, United States Magistrate Ronald E. Bush issued a Report and Recommendation ("Report"), recommending that Plaintiffs' Renewed Motion for Partial Summary Judgment and Motion for Leave to File Fourth Amended Complaint be denied. (Dkt. 510.)[1] Any party may challenge the Magistrate Judge's proposed recommendation by filing written objections within fourteen days after being served with a copy of the Report. 28 U.S.C. § 636(b)(1)(C).

Plaintiffs filed objections to the Report arguing it erred in denying its Motion for Partial Summary Judgment. (Dkt. 513.) Plaintiffs also filed a related Motion to Take Judicial Notice. (Dkt. 512.) The Defendants have filed responsive briefing to the Plaintiffs' objections and Motion to Take Judicial Notice. (Dkt. 521-23.) The matter is now ripe for the Court's consideration. See Local Civ. R. 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." See also Fed.R.Civ.P. 72(b). Where the parties object to a report and recommendation, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. Where, however, no objections are filed the district court need not conduct a de novo review. In United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz , 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi , 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz , 501 U.S. at 937-39 (clarifying that de novo review not required for Article III purposes unless requested by the parties)....

See also Wang v. Masaitis , 416 F.3d 993, 1000 n.13 (9th Cir. 2005). Furthermore, to the extent that no objections are made, arguments to the contrary are waived. See Fed.R.Civ.P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the Report and Recommendation). "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." Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court , 501 F.2d 196, 206 (9th Cir. 1974)).

In this case, Plaintiffs have filed objections. Therefore, the Court has conducted a de novo review of those portions of the Report. The Court has also reviewed the entire Report as well as the record in this matter for clear error on the face of the record and finds as follows.

DISCUSSION

1. Renewed Motion for Partial Summary Judgment

Plaintiffs renewed their Motion for Partial Summary Judgment which requests that the Court make nine particular rulings as a matter of law. (Dkt. 421.) The Report denied the Motion finding, in short, it cannot be determined upon the current record that the Financial Institutions Reform, Recovery and Enforcement Act of 1989, 12 U.S.C. § 3331, et seq., ("FIRREA") applies in this case. (Dkt. 510.) Specifically, the Report concluded that it could not find as a matter of law that FIRREA applied to the appraisals because questions of fact exist as to whether those appraisals 1) involve financial institutions and 2) that they were made in connection with federally related transactions. (Dkt. 510 at 17-21.) The Report also concluded that questions of fact precluded entry of summary judgment on the requested rulings implicating the Uniform Standards of Professional Appraisal Practice ("USPAP"). (Dkt. 510 at 22-23.) The Report also found that the requested rulings relating to the USPAP essentially seek an advisory ruling from the Court on matters not tied to any claim for relief. (Dkt. 510 at 23.)

In their objections, Plaintiffs maintain that FIRREA applies to the loan transactions in this case as a matter of law and, therefore, summary judgment is appropriate. (Dkt. 513.) Plaintiffs argue 12 U.S.C. § 1813(c)(3) and the Code of Federal Regulations ("CFR") adopted and implemented by the FDIC make FIRREA applicable to the loan transactions in this case. (Dkt. 513 at 2.) Plaintiffs further object to the Reports failure to grant summary judgment as to its requested rulings involving compliance with USPAP. (Dkt. 513 at 12-19.)

A. Judicial Notice

In conjunction with their objections to the Report, Plaintiffs have filed a Motion asking the Court to take judicial notice of ...


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