Cuprite Mine Partners, LLC, an Arizona limited liability company, Plaintiff,
John H. Anderson, a married man acting in is sole and separate capacity, et al., Defendants.
DAVID C. BURY, District Judge.
The Court grants summary judgment for the Plaintiffs, grants dismissal of the Third-party Complaint, and denies the Defendants' motion for an advisory jury. The Court appoints a commissioner to sell the mining claims and deposit the proceeds with the Court to be divided between the persons entitled thereto according to their interests. A.R.S. § 12-1218(B) and (C).
This matter was referred to Magistrate Judge Leslie A. Bowman on July 16, 2012, pursuant to the Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). On December 3, 2012, this Court issued an Order adopting her Report and Recommendation (R&R) to deny five motions to dismiss the Plaintiff's Amended Complaint which were urged pursuant to Fed.R.Civ.P. 12(b)(6). The Court found the Amended Complaint states a claim for partition under A.R.S. § 12-1211. Thereafter, the matter remained referred to Judge Bowman.
The Magistrate Judge succinctly describes the case as an action, pursuant to A.R.S. § 12-1211 and 12-1218, for partition of 16 patented mining claims. Plaintiffs want to sell the mining claims to the owner of an open-pit copper mine, Freeport McMoRan Copper & Gold, operating on adjacent property. Defendants do not want to sell. The question is whether the property may be physically partitioned or must be partitioned by sale.
The mining claims at issue were acquired in the early 20th century by Guy Anderson, who passed them to his six children upon his death. Each child was given a one-sixth interest in each claim. When the action began, five of the siblings formed the Plaintiff entity Cuprite Mine Partners, LLC (Cuprite) and sued the sixth sibling, John H. Anderson (JH Anderson). Then, Defendant JH Anderson gave twelve of his interests to his four children by giving three claims to each child, and kept four claims for himself. JH Anderson apportioned these one-sixth interests in the 12 claims between his children so they were not contiguous to each other.
Plaintiffs amended the Complaint to add the new JH Anderson Defendants: the JH Anderson children. Defendants argued that Arizona's partition statute refers to contiguous square footage within an owners' group, which did not exist subsequent to ownership being passed to the JH Anderson children. The Court rejected this argument when it denied Defendants motions to dismiss. (Order (Doc. 88) (adopting R&R (Doc. 65) at 2-4.) Defendants JH Andersons filed a "Cross-Complaint" against Cuprite that alleges George and Mark Anderson breached fiduciary duties, which Cuprite adopted and ratified. The Magistrate Judge referred to this as a Third-Party Complaint, and George and Mark Anderson are Third-Party Defendants.
On October 18, 2012, the Plaintiffs moved for summary judgment, pursuant to ARS 12-1218, asking the Court to direct the appointment of a commissioner to sell the property, with distribution of the proceeds to the parties.
On January 28, 2013, Third-Party Defendants George and Mark Anderson filed a Motion to Dismiss the Third-Party Complaint for breach of fiduciary duty.
On February 5, 2013, the Defendants filed a Motion for the Court to Try the Partition Issues to an Advisory Jury.
Magistrate Judge Bowman issued two R&Rs. She recommends granting Cuprite's Motion for Summary Judgment and Third-party Defendants Mark and George's Motion to Dismiss, and she recommends denying Defendants JH Andersons' motion for an advisory jury trial. The Court accepts and adopts the Magistrate Judge's R&Rs as the findings of fact and conclusions of law of this Court.
STANDARD OF REVIEW
The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'" Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). To the extent that no objection is made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (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)).
The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Defendants filed objections. The Plaintiffs did not respond, except to move to strike a supplemental objection filed by the Defendants. The R&R is ready for consideration by the Court, which ...