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Mansfeld v. National Science Foundation

United States District Court, D. Idaho
May 19, 2008
Case No. CV07-451-S-EJL (D. Idaho May. 19, 2008)

Opinion

Case No. CV07-451-S-EJL.

May 19, 2008


ORDER ADOPTING REPORT AND RECOMMENDATION


On April 28, 2008, United States Magistrate Candy W. Dale issued her Report and Recommendation in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the Report and Recommendation. No objections were filed by the parties. However, on May 1, 2008, Plaintiff Linda Mansfeld did file a motion requesting an extension to file an amended complaint (Docket No. 14) and the Defendant responded it had no objection to an extension of time.

Pursuant to 28 U.S.C. § 636(b)(1), this Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate. The Court has conducted a de novo review of the record pursuant to 28 U.S.C. § 636(b).

This review of the motion to dismiss and the Report and Recommendation is undertaken with an eye on Ninth Circuit standards regarding pro se litigants. See Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991). The Court has construed the Plaintiffs' pleadings in the most favorable light, however, the Court reminds the Plaintiffs that pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

In the Report and Recommendation, Magistrate Judge Dale found the removal to federal court was proper and that the complaint was subject to dismissal for failing to state a claim. Judge Dale noted that Plaintiffs should have the opportunity amend the complaint to attempt to cure the deficiencies in the complaint. Judge Dale recommends giving Plaintiffs ten (10) days to file an amended complaint. If the amended complaint fails to meet the criteria discussed in the Report and Recommendation, Judge Dale recommends granting the Defendant's motion to dismiss. The Court agrees with the analysis of Judge Dale regarding the removal, motion to dismiss and opportunity to amend.

Plaintiffs' motion for an extension of time to file an amended complaint requests an extension until December 2008 noting George Mansfeld is out of the country. The Court has reviewed the motion and finds good cause for an extension, but not for seven months to file an amended complaint. The Court will grant Plaintiffs a forty-five (45) day extension from the date of this Order to file an amended complaint. There are two named plaintiffs in this matter. Even though one plaintiff may not have physical access to documents, the other plaintiff does and in this day of scanning, emailing, faxing, mailing, etc., Plaintiffs will have more than adequate time to file an amended complaint. Plaintiffs are on notice that their failure to file an amended complaint that addresses the issues raised in the Report and Recommendation will result in dismissal of their complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

Order

Because the Court finds the Report and Recommendation of Judge Dale to be well founded in law, the Court hereby accepts in their entirety, and adopts as its own, the findings made by Judge Dale. Acting on the recommendation of Judge Dale, and this Court being fully advised in the premises,

IT IS HEREBY ORDERED:

1) Plaintiffs' motion for an extension of time (Docket No. 14) is GRANTED IN PART. The Plaintiffs shall have forty-five (45) days from the date of this Order to file an amended complaint that addresses the issues raised in Report and Recommendation. Failure to file an amended complaint within this deadline, will result in the complaint being dismissed by the Court.

2) The Defendant's motion to dismiss (Docket No. 5) is DENIED WITHOUT PREJUDICE. Defendant is free to renew its motion if the amended complaint does not cure the noted defects of the original complaint.

3) The parties are directed to file a joint litigation plan on or before August 5, 2008.


Summaries of

Mansfeld v. National Science Foundation

United States District Court, D. Idaho
May 19, 2008
Case No. CV07-451-S-EJL (D. Idaho May. 19, 2008)
Case details for

Mansfeld v. National Science Foundation

Case Details

Full title:LINDA M. MANSFELD, GEORGE J. MANSFELD, Plaintiffs, v. NATIONAL SCIENCE…

Court:United States District Court, D. Idaho

Date published: May 19, 2008

Citations

Case No. CV07-451-S-EJL (D. Idaho May. 19, 2008)