Onsager v. Frontera Produce et al, No. 2:2013cv00066 - Document 80 (D. Mont. 2014)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim. Signed by Judge Donald W. Molloy on 8/4/2014. (APP, )
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Onsager v. Frontera Produce et al Doc. 80 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION BETTE ONSAGER, as Personal Representative of the Estate of Jerome Onsager, and personally, FILED AUG 0 y.S District Court Dlstnct.Of Montana Missoula CV 13-66-BU-DWM-JCL Plaintiff, ORDER vs. FRONTERA PRODUCE LTD., a foreign corporation; PRIMUS GROUP, INC., a foreign corporation, d/b/a "Primus Labs"; WALMART STORES, INC., a foreign corporation; JOHN DOES 1-10; and COMPANIES XYZ, Defendants. The proposed Findings and Recommendations entered by United States Magistrate Judge Jeremiah C. Lynch regarding Defendant Primus Group, Inc.'s Motion to Dismiss, (Doc. 75), are now before the Court. Defendant Primus Group, Inc. ("Primus") moves to dismiss allegations set forth in the Complaint for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 26.) Plaintiff opposes the Motion. (Doc. 44.) Judge Lynch entered proposed Findings and Recommendations on the Motion on 1- Dockets.Justia.com July 10,2014. (Doc. 75.) "Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed fmdings and recommendations as provided by rules of court." 28 U.S.C. § 636(b )(1). Because the statutory objections period states that a party may file objections within a specified time after service ofthe findings and recommendations, and service of the Findings and Recommendations at issue was made by mail and electronic means, three days are added after the period would otherwise expire. See Fed. R. Civ. P. 6(d). Accordingly, written objections to Judge Lynch's proposed Findings and Recommendations were due July 28, 2014. No party timely filed written objections to the proposed Findings and Recommendations. Judge Lynch's proposed Findings and Recommendations are reviewed for clear error. When no party objects, the Court reviews the proposed findings and recommendations of a United States Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only ifthe Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). The Court reviewed the proposed Findings and Recommendations and finds -2- them free of error. They will therefore be adopted in-full. Accordingly, Primus' Motion to Dismiss will be granted in-part and denied in-part as set forth in Judge Lynch's written Order dated July 10,2014. IT IS ORDERED that the proposed Findings and Recommendations entered by United States Magistrate Judge Jeremiah C. Lynch regarding Defendant Primus Group, Inc.'s Motion to Dismiss, (Doc. 75), are ADOPTED IN-FULL. IT IS FURTHER ORDERED that Defendant Primus Group Inc.'s Motion to Dismiss is GRANTED IN-PART and DENIED IN-PART, in accordance with the Findings and Recommendations hereby adopted. DATED this 4!: day of August, 2014. -3-
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