Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Raymond B. Guthrie v. Jd Enterprise & Financial and Services

June 28, 2012

RAYMOND B. GUTHRIE,
PLAINTIFF,
v.
JD ENTERPRISE & FINANCIAL AND SERVICES, ET AL., DEFENDANTS.



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

ORDER:

(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 19], (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [DOC. 7]

On March 8, 2012, Defendants JD Enterprise & Financial Services ("JD Enterprise"), Joseph Dassa, and Joe Willis filed a motion to quash service of the complaint and dismiss under Federal Rule of Civil Procedure 12(b)(5). Defendants also request sanctions against Plaintiff Raymond B. Guthrie and his counsel. Plaintiff opposes. On April 18, 2012, the Court referred this matter to United States Magistrate Judge David H. Bartick to conduct an evidentiary hearing to determine whether service is proper, and whether imposing sanctions is warranted. Following the evidentiary hearing, Judge Bartick issued a Report & Recommendation ("Report"). Neither

has filed any objections to the Report.

For the following reasons, the Court ADOPTS the Report in its entirety (Doc. 19), and GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss (Doc. 7).

BACKGROUND

Plaintiff commenced this action on April 28, 2011. After over nine months of inactivity, on February 10, 2012, the Court issued a notice of hearing for dismissal for want of prosecution under Civil Local Rule 41.1 and Federal Rule of Civil Procedure 4(m). (Doc. 3.) Shortly thereafter, on February 23, 2012, the summonses were finally returned executed as to JD Enterprise and Mr. Dassa. (Docs. 4, 5.) To date, there is no proof of service on record for Mr. Willis.

On March 8, 2012, Defendants filed a motion to quash service and dismiss the complaint under Rule 12(b)(5). (Doc. 7.) Defendants also request that the Court impose monetary and terminating sanctions on Plaintiff and his counsel for Plaintiff's purported bad-faith conduct and fraud on the court. The bad-faith contention is based on Plaintiff's over nine-month delay to serve the complaint, which only occurred after the Court issued the notice of hearing for dismissal. The fraud contention is based on Plaintiff filing allegedly false proofs of service. In light of those serious allegations, the Court referred the matter to Judge Bartick for an evidentiary hearing to determine whether service is proper, and whether imposing sanctions is warranted.

The evidentiary hearing was held on May 15, 2012.

On June 8, 2012, Judge Bartick issued the Report, recommending that the Court consider that Plaintiff personally served JD Enterprise and Mr. Dassa on February 20, 2012, and deny Defendants' request for sanctions. Judge Bartick also notes that the Report does not address Defendants' motion to dismiss under Rule 4(m) and Civil Local Rule 41.1. (Report 8 n.6.) Both parties were given the opportunity to file objections to the Report by June 22, 2012. To date, neither party has filed any objections.

LEGAL STANDARD

A district court's duties concerning a magistrate judge's report and recommendation and a party's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that 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") (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections are filed, the district court has no obligation to review the magistrate judge's report).

In contrast, the duties of a district court in connection with a magistrate judge's report and recommendation are quite different when an objection has been filed. These duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. ยง 636(b)(1). Specifically, the district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.