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Case 1:12-cv-00288-EJL-LMB Document 57 Filed 02/19/13 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Case No. 1:12-CV-00288-EJL

ORDER ADOPTING AMENDED
REPORT AND RECOMMENDATION

ROBERT C. TONSMEIRE,

Plaintiff,

v.

AM SOUTH BANK, MICHAEL C.
DELANEY ARTHUR C. TONSMEIRE III,
ESTATE OF JOSEPH L. TONSMEIRE,
DANIEL L. TONSMEIRE, and EDWARD
C. TONSMEIRE,

Defendants.


United States Magistrate Judge Larry M. Boyle issued an Amended Report and

Recommendation in this matter. (Dkt. 52.) Pursuant to 28 U.S.C. § 636(b)(1), the parties

had fourteen days in which to file written objections to the Report and Recommendation.

Objections were filed by Plaintiff and responses to the objections were filed by

Defendants. The matter is now ripe for the Court’s consideration.



DISCUSSION



Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in

whole or in part, the findings and recommendations made by the magistrate judge. Where

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION - 1

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the parties object to a report and recommendation, this Court shall make a de novo

determination of those portions of the report which objection is made. Id. Where,

however, no objections are filed the district court need not conduct a de novo review. In

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted

the requirements of 28 U.S.C. § 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
. . . .

See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to

the extent that no objections are made, arguments to the contrary are waived. See Fed. R.

Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within

fourteen days of service of the Report and Recommendation). “When no timely objection

is filed, the Court need only satisfy itself that there is no clear error on the face of the

record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.

Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th

Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de

novo determination of the Report and Recommendation.

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FACTUAL BACKGROUND

The Court adopts the factual background set forth by Judge Boyle.

OBJECTIONS

Plaintiff contends that the Court is ignoring the law and that issues decided and

appealed in Alabama are ripe for review in federal court in Idaho. The Court respectively

disagrees with Plaintiff. The Court agrees with Judge Boyle that the doctrine of res

judicata applies to the current claims by Plaintiff. The Court has considered and

understands Plaintiff’s argument that the proceedings approximately 20 years ago in

Alabama were not fair or complete, but this Court does not have jurisdiction to re-open a

closed Alabama proceeding and cannot simply retry the proceedings ignoring the

Alabama proceedings. The judicial system is not set up to allow parties to re-litigate their

claims in another jurisdiction if the outcome in the first jurisdiction is not to their liking.

Plaintiff received appellate review of the Alabama proceedings.

This Court has reviewed Plaintiff’s claims and by his own admission they are the

same claims he litigated unsuccessfully in Alabama. The Court finds the three elements

of res judicata have been established: “(1) an identity of claims; (2) a final judgment on

the merits; and (3) identity or privity between the parties.” Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). Plaintiff wants to dispute that not

all the facts were presented in Alabama such that the judgment was not on the merits.

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This argument is not properly raised before this Court and should have been raised to the

Alabama appellate court. This Court simply cannot re-try issues and claims already

adjudicated. Any claim of fraud must be raised with the Court that issued the judgment,

not a new court.

The Court adopts as it own response to Plaintiff’s objections the responses filed by

Defendants in Dkts. 55 and 56. For all these reasons, Plaintiff’s objections to the

Amended Report and Recommendation are denied and the action must be dismissed

based on Plaintiff’s failure to raise a claim upon which relief can be granted.





CONCLUSION

The Court has reviewed the Amended Report and Recommendation and the record

in this matter and finds no clear error on the face of the record. Moreover, the Court finds

the Amended Report and Recommendation is well-founded in the law based on the facts

of this particular case and this Court is in agreement with the same.

ORDER

IT IS ORDERED:

1.

The Amended Report and Recommendation (Dkt. 52) shall be

INCORPORATED by reference and ADOPTED in its entirety unless

otherwise modified by this Order.

2.

Defendants’ Motions to Dismiss (Dkt. 3, 15, and 28) are GRANTED.

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3.

Plaintiff’s Motion for a Continuance (Dkt. 10), Motion for Summary

Judgment (Dkt. 24), Second Motion for a Continuance (Dkt. 34), Third

Motion for a Continuance (Dkt. 45) are DENIED AS MOOT based upon

the Court’s granting of the motions to dismiss.

4. Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

DATED: February 19, 2013


Honorable Edward J. Lodge
U. S. District Judge

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