United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge
2, 2016, Chief United States Magistrate Judge Ronald E. Bush
issued a Report and Recommendation ("Report"),
recommending that Defendant's Motion to Dismiss be
granted. (Dkt. 27.) Any party may challenge a magistrate
judge's proposed recommendation by filing written
objections to the Report within fourteen days after being
served with a copy of the same. See 28 U.S.C. §
636(b)(1); Local Civil Rule 72.1(b). The district
court must then "make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made."
Id. The district court may accept, reject, or modify
in whole or in part, the findings and recommendations made by
the magistrate judge. Id.; see also Fed. R.
Civ. P. 72(b). The Plaintiff has not filed objections to the
Report but did file a Motion for Reconsideration which has
been denied. (Dkt. 28, 34.) The matter is now ripe for the
Court's consideration. See Local Civil Rule
72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
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." 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. §
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.
Court has reviewed the entire Report as well as the record in
this matter for clear error on the face of the record and
none has been found. The Court has also conducted a de
novo review of the Report in light of the
Plaintiff's Motion for Reconsideration and other filings
and concludes the Report is correct. This review was
undertaken with the Court being mindful that the Plaintiff is
a pro se litigant and, as such, the filings and
motions are construed liberally. See Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). That being
said, while pro se litigants are held to less
stringent standards, a litigant's pro se status
does not excuse him or her from complying with the procedural
and substantive rules of the court. Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam);
Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003).
Applying these principles here, this Court is in agreement
with the reasoning and conclusion of the Report.
full procedural background and facts of this case are well
articulated in the Report and the Court incorporates the same
in this Order. (Dkt. 27.) The Plaintiff, Martin Bettwieser,
filed the Complaint pro se in this matter raising
claims relating to his Freedom of Information Act (FOIA)
request. (Dkt. 1.) The named Defendants are Billy Gans, Kelly
Kalbfleisch, Herschel Howard, and the United States Postal
Service. Defendant Howard filed the instant Motion to Dismiss
based on lack of subject matter jurisdiction and failure to
state a claim. (Dkt. 9.) The Report agrees and recommends that
this Court grant the Motion and dismiss the claims against
Defendant Howard. (Dkt. 27.)
Court finds the Report accurately states the applicable law
and appropriately applies that law to the facts in this case.
In particular, the Court agrees with the Reports reasoning,
analysis, and conclusion that there is no subject matter
jurisdiction over the claims against Defendant Howard, as a
union representative, under 39 U.S.C. § 1208(c). (Dkt.
27.) The Court has considered the Plaintiff's argument
made in various filings that additional responses from the
Defendants are needed before a complete response to the
Motion to Dismiss can be made. (Dkt. 12, 28.) This Court has
reviewed all of the Plaintiffs filings including those made
as to Defendant Howard's Motion to Dismiss as well as the
United States Postal Service's Motion to Dismiss. Having
done so, the Court concludes that the Report and the
Magistrate Judge's Order denying Plaintiff's Motion
to Reconsider properly addressed that argument and correctly
concluded that Plaintiff's filings do not cure the lack
of subject-matter jurisdiction as to Defendant Howard. (Dkt.
27, 34.) In addition, this Court notes that where, as here, a
defendant challenges subject matter jurisdiction pursuant to
Rule 12(b)(1), “the plaintiff has the burden of proving
jurisdiction in order to survive the motion.”
Kingman Reef Atoll Invs., LLC v. United States, 541
F.3d 1189, 1197 (9th Cir. 2008) (internal quotation marks and
citation omitted). The Plaintiff in this case has not made
this showing. For all of these reasons, the Court agrees with
the Report and will adopt the same. The Motion to Dismiss is
THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on May 2, 2016 (Dkt. 27) is ADOPTED IN
FURTHER ORDERED that Defendant's Motion to Dismiss (Dkt.
9) is GRANTED and the Complaint is DISMISSED as to ...