Outley v. Moir

Opinion

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

9 Michael Dewayne Outley, Jr., No. CV-19-00019-PHX-JAT (JFM)

10 Plaintiff, ORDER

11 v.

12 Sylvia Moir, et al.,

13 Defendants. 14 15 Pending before the Court is the report and recommendation from Magistrate Judge 16 Metcalf recommending that Defendant Blair be dismissed for failure to timely serve. (Doc. 17 137). The time to file objections to the report and recommendation has expired and no 18 party filed objections. 19 A district court’s review of a Magistrate Judge’s report and recommendation turns 20 on whether the parties have timely objected. Fed. R. Civ. P. 72(b). It is “clear that the 21 district judge must review the magistrate judge’s findings and recommendations de novo if 22 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 23 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 24 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 25 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 26 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 27 Cir. 2009) (The district court “must review de novo the portions of the [Magistrate Judge’s] 28 recommendations to which the parties object.”). District courts are not required to conduct 1|| “any review at all... of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (‘[T]he court shall make a de 3|| novo determination of those portions of the [report and recommendation] to which objection is made.’).! “Failure to make timely objection to the magistrate [judge]’s report 5 || prior to its adoption by the district judge may constitute a waiver of appellate review of the || district judge’s order.” Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON 7\| RULES—1983, citing United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 8 There being no objections, the Court accepts the report and recommendation. See 28 U.S.C. § 636(b)(1) (“A [district court judge] may accept, reject, or modify, in whole or 10 || in part, the findings or recommendations made by the magistrate judge.”). Accordingly, 11 IT IS ORDERED that the Report and Recommendation (Doc. 137) is accepted. 12 || Defendant Blair is dismissed, without prejudice. 13 Dated this Sth day of October, 2021. 14 15 16 1 James A. Teilborg 7 Senior United States District Judge 18 19 20 21 22 23 24 ' The Court notes that the Notes of the Advisory Committee on Rules appeat to suggest a □□ clear error standard of review under Federal Rule of Civil Procedure 72(b), citing Campbell. Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON RULES— 1983 citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879 (The court “need only satisfy itself that there is no clear error on the 27|| face of the record in order to accept the recommendation.”). The court in Campbell, however, appears to delineate a standard of review specific to magistrate judge findings in || the motion to Suppress context. See Campbell, 501 F.2d at 206—207. As such, this Court follows the Ninth Circuit’s more recent decision in Reyna-Tapia on this issue.

_2-