Southwest Heritage Bank v. Steven C Coury, et al.

Opinion

1 WO 2 3 4 5 8 9 Southwest Heritage Bank, No. CV-25-00047-PHX-SMM (JZB) 10 Plaintiff, ORDER 11 v. 12 Steven C Coury, et al., 13 Defendants. 14 15 This matter was assigned to Magistrate Judge John Z. Boyle. (Doc. 4). On 16 February 2, 2026, the Magistrate Judge filed a Report and Recommendation with this 17 Court.1 (Doc. 54). The Magistrate Judge recommends that this Court deny Plaintiff’s 18 Motion for Default Judgment Against Defendant Lincoln J. Moore (“Defendant Moore”) 19 1 This case is assigned to a Magistrate Judge. However, not all parties have 20 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: 21 When a United States Magistrate Judge to whom a civil action has been 22 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) 23 due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge, 24 IT IS ORDERED that the Magistrate Judge will prepare a Report and 25 Recommendation for the Chief United States District Judge or designee. 26 IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on 27 my behalf: 28 Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee 1 (Doc. 38) without prejudice because the Eitel factors weigh against entry of default 2 judgment and recommends that the Court deny Plaintiff’s Motion for Attorney’s Fees 3 (Doc. 40) without prejudice because there is no judgment against Defendant Moore. 4 (Doc. 54). The Magistrate Judge further recommended that, if the previous 5 recommendations are adopted, Plaintiff be granted thirty days to file an amended 6 complaint. (Id.) After the Magistrate Judge filed the Report and Recommendation, 7 Plaintiff filed a Motion for Leave to Amend Complaint and Withdrawal of Default 8 Judgment Pending the Filing of Amended Complaint. (Doc. 55). Due to Plaintiff’s 9 intervening Motion, the Court rejects the Magistrate Judge’s Report and 10 Recommendation. 12 The Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the 15 service of a copy of the Magistrate’s recommendation within which to file specific 16 written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to 17 object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo 18 review of the Magistrate Judge’s factual findings and waives all objections to those 19 findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to 20 object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the 21 propriety of finding waiver of an issue on appeal.” Id. 23 Having reviewed the Report and Recommendation of the Magistrate Judge and 24 Plaintiff’s intervening Motion, the Court hereby declines to adopt the Magistrate Judge’s 25 Report and Recommendation because it is now moot. 26 The Magistrate Judge recommended that this Court deny Plaintiff’s Motion for 27 Default Judgment and allow Plaintiff thirty days to file an amended complaint because 28 Plaintiff did not state a claim that complies with Fed. R. Civ. P. 9(b). (Doc. 54). After the 1|| Magistrate Judge filed the Report and Recommendation, Plaintiff filed a Motion for Leave to Amend Complaint and Withdrawal of Default Judgment Pending the Filing of 3 || Amended Complaint. (Doc. 55). Due to Plaintiff's intervening Motion, the Court declines 4|| to adopt the Magistrate Judge’s Report and Recommendation. 5 Accordingly, for the reasons set forth, 6 IT IS ORDERED rejecting the Report and Recommendation of the Magistrate 7\| Judge because it is now moot. (Doc. 54). 8 Dated this 18th day of February, 2026. 9

Stephen M. McNamee Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-3-