(PS) Balthrope v. Sacramento County Department of Health and Human Services et al, No. 2:2010cv03003 - Document 105 (E.D. Cal. 2012)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/17/2012 ORDERING that the 10/18/2012 hearing on this matter is VACATED; RECOMMENDING 93 Motion for Certification filed by Sacramento Child Advocates be granted; and the Clerk be directed to enter judgment as to SCA defendants. Matter referred to Judge Kimberly J. Mueller; Objections to F&R may be filed within 14 days from the date of service of these findings and recommendations. (Waggoner, D)
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(PS) Balthrope v. Sacramento County Department of Health and Human Services et al Doc. 105 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARIEL BALTHROPE, 11 Plaintiff, 12 13 14 15 16 17 No. 2:10-cv-3003-KJM-JFM (PS) vs. SACRAMENTO COUNTY OF HEALTH AND HUMAN SERVICES, et al., ORDER AND Defendants. FINDINGS & RECOMMENDATIONS / Pending before the court is a motion for certification filed by defendants 18 Sacramento Child Advocates, Inc. (“SCA”), Robert Wilson, Rebekah Sass and Lisa Thor (sued 19 as Lisa Presley) (collectively, “the SCA defendants”). On January 26, 2012, these defendants 20 were dismissed from this action with prejudice following the Honorable Kimberly J. Mueller’s 21 adoption of the undersigned’s December 8, 2011 findings and recommendations recommending 22 that the SCA defendants’ motion to dismiss be granted. 23 The SCA defendants have returned to the court for the limited purpose of 24 obtaining certification of the order dismissing all claims against them as a final judgment 25 pursuant to Federal Rule of Civil Procedure 54(b). These defendants seek certification on the 26 grounds that SCA no longer exists beyond winding up its affairs and the individual SCA 1 Dockets.Justia.com 1 defendants are employed elsewhere. They argue that they should not be put to the expense of 2 monitoring this matter that no longer concerns them and potentially face an appeal filed years in 3 the future. The remaining defendants in this action have filed a statement of non-opposition. 4 Plaintiff has filed an opposition. 5 In the context of this multi-defendant, multi-claim case, a designation of “final 6 judgment” under Rule 54(b) regarding the claims against the SCA defendants requires (1) that 7 the judgment in question be an “ultimate disposition” of an individual claim among multiple 8 claims and (2) that there be no reason for delaying the determination. Curtiss–Wright Corp. v. 9 Gen. Elec. Corp., 446 U.S. 1, 7–8 (1980). Both those criteria are met here. 10 In her opposition, plaintiff asserts that the SCA defendants are seeking 11 certification now because they do not want to list the current proceeding as an ongoing 12 proceeding in their bankruptcy petition. The SCA defendants counter that they have not filed for 13 bankruptcy. They further argue that even if bankruptcy was a possibility, plaintiff has not 14 explained how that would affect the court’s analysis. The SCA defendants’ point is well-taken. 15 The court thus finds that there is no reason for delay and directs judgment be entered as to the 16 SCA defendants. 17 18 Accordingly, IT IS HEREBY ORDERED that the October 18, 2012 hearing on this matter is vacated; and 19 IT IS HEREBY RECOMMENDED that: 20 1. The SCA defendants’ motion for certification be granted; and 21 3. The Clerk of the Court be directed to enter judgment as to the SCA defendants. 22 These findings and recommendations are submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 24 days after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 1 objections shall be filed and served within fourteen days after service of the objections. The 2 parties are advised that failure to file objections within the specified time may waive the right to 3 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: October 17, 2012. 5 6 7 8 /balt3003.jo(11) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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