Swisher v. Collins

Full title: ELVEN JOE SWISHER and WALTER O. LINDSEY, Plaintiffs, v. K.E. COLLINS, MIKE…

Court: United States District Court, D. Idaho

Date published: Sep 6, 2007

Case No. CV 06-338-S-EJL (D. Idaho Sep. 6, 2007)

Opinion

Case No. CV 06-338-S-EJL.

September 6, 2007

REPORT AND RECOMMENDATION

LARRY BOYLE, Magistrate Judge

Currently pending before the Court is a Motion to Dismiss Ben Keeley as a Defendant (Docket No. 98).¹ Plaintiffs have no objection to the dismissal of Mr. Keeley as a defendant in this action. Response to Motion to Dismiss Ben Keeley, p. 2 (Docket No. 119). For this reason, and after careful review of the record, the Court now enters the following Report and Recommendation pursuant to 28 U.S.C. § 636(b) recommending that the Motion at issue be granted.

1 There are several other motions pending in this action that will be resolved by separate orders.

I. REPORT

The attorneys for Defendant Idaho Division of Veterans Services ("IDV") and its employees have filed a Motion to Dismiss Ben Keeley as a Defendant because Mr. Keeley, a former employee of IDV, died on February 27, 2006, prior to the filing of Plaintiff's Complaint. Motion to Dismiss Ben Keeley, p. 2 (Docket No. 98); see also Ellsworth Affidavit, Exhibit A (Docket No. 98-2) (certified copy of the Certification of Facts of Death); Suggestion of Death Upon Record Under Federal Rule of Civil Procedure 25(a)(1) (Docket No. 98-3). For this reason, because Plaintiffs have no objection to the dismissal of Mr. Keeley from this action, see Response to Motion to Dismiss Ben Keeley, p. 2 (Docket No. 119), and because no other Defendants have objected to the proposed dismissal of Defendant Keeley, it is recommended that the District Court grant the Motion to Dismiss Ben Keeley as a Defendant (Docket No. 98).

II. RECOMMENDATION

Based on the foregoing, it is recommended that the District Court GRANT the Motion to Dismiss Ben Keeley as a Defendant (Docket No. 98) and dismiss all claims against Ben Keeley. Written objections to this Report and Recommendation must be filed within ten (10) days pursuant to 28 U.S.C. § 636 and District of Idaho Local Civil Rule 72.1. If written objections are not filed within the specified time, the right to raise factual and/or legal objections in the Ninth Circuit Court of Appeals may be waived.