Gault v. Charles Schwab Corporation

Opinion

Brittney Gault, No. CV-23-00747-PHX-MTM

Plaintiff, ORDER

v.

Charles Schwab Corporation,

Defendant. This matter was assigned to Magistrate Judge Michael T. Morrissey. (Doc. 6). On July 17, 2023, the Magistrate Judge filed a Report and Recommendation with this Court.1 (Doc. 14). To date, no objections have been filed. The Court “may accept, reject, or modify, in whole or in part, the findings or

1 This case is assigned to a Magistrate Judge. However, not all parties have consented to the jurisdiction of the Magistrate Judge. Thus, the matter is before this Court pursuant to General Order 21-25, which states in relevant part:

When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,

IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee. IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf: Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy of the Magistrate’s recommendation within which to file specific written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s factual findings and waives all objections to those findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id. Having reviewed the Report and Recommendation of the Magistrate Judge, and no Objections having been made by any party thereto, the Court hereby incorporates and adopts the Magistrate Judge’s Report and Recommendation. Accordingly, for the reasons set forth, IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge. (Doc. 14). IT IS FURTHER ORDERED that Defendant shall answer Counts One and Three of the First Amended Complaint. (Doc. 12). IT IS FURTHER ORDERED that Count Four of Plaintiff’s First Amended Complaint be dismissed without prejudice. (Doc. 12). IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a service packet including the Amended Complaint (Doc. 12), this Order, a copy of the Marshal’s Process Receipt & Return form (USM-285), and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendant. IT IS FURTHER ORDERED that Plaintiff must complete and return the service packet to the Clerk of Court by August 31, 2023. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. IT IS FURTHER ORDERED that if Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Amended Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). IT IS FURTHER ORDERED that the United States Marshal must retain the Summons, a copy of the Amended Complaint, and a copy of this Order for future use. IT IS FURTHER ORDERED that the United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. IT IS FURTHER ORDERED that a Defendant who agrees to waive service of the Summons and Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. IT IS FURTHER ORDERED that the Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must: (a) personally serve copies of the Summons, Amended Complaint, and this Order upon Defendant pursuant Rule 4(j)(2) of the Federal Rules of Civil Procedure; and (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. IT IS FURTHER ORDERED that Defendant must answer the Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. Dated this 3rd day of August, 2023. — Lil nora Hdhorable Stephen M. McNamee Senior United States District Judge

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