Opinion
CV-22-1133-PHX-DMF
07-27-2022
One Call Construction Services LLC, Plaintiff, v. Sunroad Lazo Apartments LLC, et al., Defendants.
HONORABLE STEPHEN M. MCNAMEE, SENIOR U.S. DISTRICT JUDGE.
This case is assigned to a Magistrate Judge. However, not all parties have 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:
When a United States Magistrate Judge to whom a civil action has been 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) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
This matter is before the Court on the parties' Stipulation of Dismissal of Entire Action With Prejudice (Doc. 12). This matter was removed from the Maricopa County Superior Court on July 5, 2022 (Doc. 1). Plaintiff consented to magistrate judge jurisdiction on July 21, 2022 (Doc. 11).
An appearance by counsel has been made for Defendants Sunroad Lazo Apartments, LLC, Sunroad Lazo Apartments Partnership, LP, Sunroad Real Estate Holding Corporation and Sunroad Parcland Apartments, LLC (“Sunroad Defendants”). Without the Defendants' consent to a magistrate judge, there is not full consent for undersigned to enter dispositive orders, such as dismissing this case. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, undersigned proceeds by Report and Recommendation rather than by Order.
The parties have filed a stipulation to dismiss the entire action with prejudice stating that:
The Parties reached a settlement agreement wherein One Call agreed to dismiss the action in its entirety with prejudice upon receipt of payments totaling $365,439.43 (the “Agreement”). This payment condition has been satisfied and the Parties now seek to dismiss this action in its entirety, with prejudice.
IT IS HEREBY STIPULATED by and between all Parties, through their respective counsel of record, as follows: (1) One Call's entire action shall be dismissed, with prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii); (2) and One Call and the Sunroad Defendants and each of them shall bear their own attorneys' fees and costs incurred in connection with this action.(Doc. 12 at 2).
For the reasons set forth above and upon good cause shown, the Court recommends that the parties' stipulation be granted, the action be dismissed with prejudice with each party to bear its own attorneys' fees and costs, and the Clerk of Court be directed to terminate this matter.
Accordingly,
IT IS RECOMMENDED that the parties' Stipulation of Dismissal of Entire Action With Prejudice (Doc. 12) be granted, the action be dismissed with prejudice with each party to bear its own attorneys' fees and costs, and the Clerk of Court be directed to terminate this matter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.