Gault v. Charles Schwab Corporation

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

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

10 Plaintiff, ORDER

11 v.

12 Charles Schwab Corporation,

13 Defendant. 14 15 This matter was assigned to Magistrate Judge Michael T. Morrissey. (Doc. 6). On 16 July 17, 2023, the Magistrate Judge filed a Report and Recommendation with this Court.1 17 (Doc. 14). To date, no objections have been filed. 18 STANDARD OF REVIEW 19 The Court “may accept, reject, or modify, in whole or in part, the findings or

20 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 21 to General Order 21-25, which states in relevant part:

22 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 23 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 24 to the full authority of the Magistrate Judge,

25 IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee. 26 IT IS FURTHER ORDERED designating the following District Court 27 Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf: 28 Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee 1 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service 3 of a copy of the Magistrate’s recommendation within which to file specific written 4 objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a 5 Magistrate Judge’s recommendation relieves the Court of conducting de novo review of 6 the Magistrate Judge’s factual findings and waives all objections to those findings on 7 appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a 8 Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety of 9 finding waiver of an issue on appeal.” Id. 10 DISCUSSION 11 Having reviewed the Report and Recommendation of the Magistrate Judge, and no 12 Objections having been made by any party thereto, the Court hereby incorporates and 13 adopts the Magistrate Judge’s Report and Recommendation. 14 CONCLUSION 15 Accordingly, for the reasons set forth, 16 IT IS ORDERED adopting the Report and Recommendation of the Magistrate 17 Judge. (Doc. 14). 18 IT IS FURTHER ORDERED that Defendant shall answer Counts One and 19 Three of the First Amended Complaint. (Doc. 12). 20 IT IS FURTHER ORDERED that Count Four of Plaintiff’s First Amended 21 Complaint be dismissed without prejudice. (Doc. 12). 22 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a service 23 packet including the Amended Complaint (Doc. 12), this Order, a copy of the Marshal’s 24 Process Receipt & Return form (USM-285), and Notice of Lawsuit & Request for Waiver 25 of Service of Summons form for Defendant. 26 IT IS FURTHER ORDERED that Plaintiff must complete and return the service 27 packet to the Clerk of Court by August 31, 2023. The United States Marshal will not 28 provide service of process if Plaintiff fails to comply with this Order. 1 IT IS FURTHER ORDERED that if Plaintiff does not either obtain a waiver of 2 service of the summons or complete service of the Summons and Amended Complaint on 3 a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of 4 this Order, whichever is later, the action may be dismissed as to each Defendant not served. 5 Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii). 6 IT IS FURTHER ORDERED that the United States Marshal must retain the 7 Summons, a copy of the Amended Complaint, and a copy of this Order for future use. 8 IT IS FURTHER ORDERED that the United States Marshal must notify 9 Defendants of the commencement of this action and request waiver of service of the 10 summons pursuant to Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) 11 of the Arizona Rules of Civil Procedure. The notice to Defendants must include a copy of 12 this Order. 13 IT IS FURTHER ORDERED that a Defendant who agrees to waive service of 14 the Summons and Amended Complaint must return the signed waiver forms to the United 15 States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for 16 waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being 17 charged the cost of personal service. 18 IT IS FURTHER ORDERED that the Marshal must immediately file signed 19 waivers of service of the summons. If a waiver of service of summons is returned as 20 undeliverable or is not returned by a Defendant within 30 days from the date the request 21 for waiver was sent by the Marshal, the Marshal must: 22 (a) personally serve copies of the Summons, Amended Complaint, and this Order 23 upon Defendant pursuant Rule 4(j)(2) of the Federal Rules of Civil Procedure; and 24 (b) within 10 days after personal service is effected, file the return of service for 25 Defendant, along with evidence of the attempt to secure a waiver of service of the summons 26 and of the costs subsequently incurred in effecting service upon Defendant. The costs of 27 service must be enumerated on the return of service form (USM-285) and must include the 28 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 2|| (USM-285), if required. Costs of service will be taxed against the personally served 3|| Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless 4|| otherwise ordered by the Court. 5 IT IS FURTHER ORDERED that Defendant must answer the Amended 6 || 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. 8 Dated this 3rd day of August, 2023. 9 10 11 — Lil nora Hdhorable Stephen M. McNamee 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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