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King v. Donley

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 5, 2009

LAURA KING, PLAINTIFF,
v.
MICHAEL DONLEY, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

Defendant's motion to dismiss came on regularly for hearing January 28, 2009. Plaintiff, proceeding in propria persona, failed to appear. Jason Ehrlinspiel appeared for defendant. Upon review of the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

Defendant moves to dismiss on the grounds of judicial estoppel due to plaintiff's failure to list her present claim on any of the schedules she filed in her prior bankruptcy action. In opposition, plaintiff requests that her action be dismissed. At the hearing, defense counsel agreed to a waiver of costs if the action is dismissed with prejudice.*fn1

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed under Federal Rule of Civil Procedure 41(a)(2) with prejudice and waiver of costs.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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