United States District Court, D. Idaho
DON HALL, DANA HALL, JIM KEYES, representing WHOLESALE MOTORS, Plaintiffs,
C. CHILDERS and DAVE MARSHALL, et al, Defendants.
ORDER ON REPORT AND RECOMMENDATION
J. LODGE, UNITED STATES DISTRICT JUDGE
February 6, 2017, Chief United States Magistrate Judge Ronald
E. Bush issued a Report and Recommendation
(“Report”), recommending that Defendants'
Motion to Dismiss be granted in part and denied in part.
(Dkt. 20.) 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). No
objections were filed. The matter is 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. § 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, Ato 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)).
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.
full procedural background and facts of this case are well
articulated in the Report and the Court incorporates the same
in this Order. (Dkt. 20.) The Plaintiffs are individuals
appearing pro se on behalf of Wholesale Motors.
(Dkt. 1.) Plaintiffs raise § 1983 claims against the
Defendants seeking damages of alleged violations of the
Fourth, Fifth, and Fourteenth Amendments. (Dkt. 1.)
Report concluded that the individual Plaintiffs lack standing
but that Wholesale Motors does have standing. (Dkt. 20.) This
Court agrees with the Report in this regard and will adopt
the same. To the extent any of the claims are plead on behalf
of the individual Plaintiffs, they are dismissed. The Motion
to Dismiss is denied to the extent it is based upon a lack of
standing by Wholesale Motors. This Court further adopts the
Report's analysis, discussion, and conclusion regarding
denial of the Motion to Dismiss based on improper service of
process and/or failure to post a bond.
Report also concluded that Wholesale Motors, as a corporation
entity, could not properly proceed as a pro se
litigant under Local Civil Rule 83.4(d). As such, the case
was stayed for a period of twenty-one days during which time,
Wholesale Motors was directed to file a notice of appearance
of its counsel. The Report explicitly stated that failure to
file such notice would be grounds for dismissal of the case
without further notice. (Dkt. 20.) Wholesale Motors has
failed to file any such notice and the time for doing so has
passed. This Court is in agreement with the Report's
legal analysis and application in this regard and concludes
that, for the reasons stated in the Report and herein, the
case should be dismissed with prejudice.
dismissal pursuant to Rule 12(b)(6), the Court finds the
Report applied the proper law to the facts in concluding that
the Complaint states a claim against Officers C. Childers and
Dave Marshall but that the claims against Chief of Police R.
Scot Haug and the municipal Defendants should be dismissed
with leave to amend. (Dkt. 20.) For the reasons stated in the
Report, which this Court adopts, the Motion to Dismiss is
granted as to Chief Haug and the municipal Defendants on this