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Owen v. County of Imperial

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 19, 2010

KATHERINE AVILLA OWEN, PLAINTIFF,
v.
COUNTY OF IMPERIAL, DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE

Plaintiff, an attorney proceeding pro se, filed a complaint for battery, negligence and violation of the Americans with Disabilities Act arising out of her arrest and detention. However, she failed to prosecute her case in that she did not conduct any discovery and failed to appear at the mandatory settlement conference. Defendant moved for sanctions, including terminating sanctions. While Plaintiff opposed the dismissal of the case with prejudice, she was not opposed to dismissal without prejudice. In accordance with 28 U.S.C. Section 636, United States Magistrate Judge Nita L. Stormes issued an order granting Defendant $1,191.52 in monetary sanctions to compensate it for the expenses incurred for appearing at the mandatory settlement conference. In addition, she issued a report and recommendation recommending to dismiss the case without prejudice. Plaintiff has not filed any objections. For the reasons which follow, the Report and Recommendation is ADOPTED and the complaint is DISMISSED WITHOUT PREJUDICE.

A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute 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." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003).

In the absence of objections, the Report and Recommendation is ADOPTED. The complaint is DISMISSED WITHOUT PREJUDICE for failure to prosecute.

IT IS SO ORDERED.

20100419

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