Case Information
*1 Case 2:05-cv-02364-SMM-JRI Document 118 Filed 10/09/07 Page 1 of 2 WO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Dushan Stephan Nickolich, II, ) No. CV-05-2364-PHX-SMM
)
Plaintiff, ) ORDER
) ) ) ) ) ) )
v.
Dora Schriro, et al.,
Defendants.
_________________________________
Pending before the Court is Magistrate Judge Jay R. Irwin’s Report and Recommendation regarding Petitioner’s Motion for Cause the issue of the dismissal of an unserved defendant. Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson Arizona, filed the Motion for Cause on July 23, 2007 (Doc. 101) seeking to extend the time to effect service on Defendant McCauley. On July 27, 2007 Respondents filed their Response thereto (Doc 102), opposing the motion, and seeking dismissal of Defendant McCauley. Petitioner then filed a Reply on August 2, 2007 (Doc. 105), opposing the dismissal. Accordingly, pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(1), Local Rules of Civil Procedure, Magistrate Judge Irwin made his Report & Recommendation to this Court.
STANDARD OF REVIEW
When reviewing a Magistrate Judge’s Report and Recommendation, this Court “must make a de novo determination of those portions of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 *2 Case 2:05-cv-02364-SMM-JRI Document 118 Filed 10/09/07 Page 2 of 2 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). By failing to object to a Report and Recommendation, a party waives his right to challenge the Magistrate’s factual findings, but not necessarily the Magistrate’s legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate’s legal conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)). DISCUSSION [1]
After conducting a thorough legal analysis, Magistrate Judge Irwin determined that Petitioner failed to establish that he was entitled to any further extension of time to complete service on Defendant McCauley. Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, the Court agrees that any further extension would in fact be futile and that pursuant to Federal Rule of Civil Procedure 4(m) and Local Civil Rule 16.2(b)(2)(B)(I), Defendant McCauley should be dismissed without prejudice. Therefore, the Court hereby incorporates and adopts the Magistrate Judge’s Report and Recommendation .
CONCLUSION
IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Jay R. Irwin (Doc. 108).
DATED this 9 th day of October, 2007.
[1] The detailed procedural history of this case is set forth in the Magistrate Judge’s Report 27 and Recommendation ( Doc. 108). 28 - 2 -