United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
On May 15, 2014, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation, (Doc. 16), in which she recommended granting in part Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for More Definite Statement. (Doc. 11). Magistrate Judge Bowman advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. §636(b). Plaintiffs have filed an objection. (Doc. 17). Defendant has filed a response. (Doc. 18).
The parties do not object to the factual background as set forth in the Report and Recommendation. As such, the Court adopts the Report and Recommendation's background information.
II. Procedural History
On August 16, 2013, Plaintiffs filed a Complaint alleging that the United States' actions constituted abuse of authority, defamation, assault, battery, false imprisonment, negligence, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, misrepresentation, negligent misrepresentation, wrongful institution of legal proceedings, and wrongful interference with business relations. (Doc. 1). On December 16, 2013, Defendant filed a Partial Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for More Definite Statement. (Doc. 11). Plaintiffs filed a Response on February 17, 2014. (Doc. 14). Defendant filed a Reply on March 3, 2014. (Doc. 15).
On May 15, 2014, Magistrate Judge Bowman issued a Report and Recommendation. (Doc. 16). In her Report and Recommendation, Magistrate Judge Bowman recommends granting Defendant's Motion as it relates to the claims of defamation, misrepresentation and negligent misrepresentation. Further, Magistrate Judge Bowman recommends denying the Motion as moot as to the claims for malicious prosecution, wrongful interference with business relations and negligent infliction of emotional distress as Plaintiffs agreed to withdraw those claims. Finally, Magistrate Judge Bowman recommends granting the Motion for a More Definite Statement and dismissing Plaintiffs' Complaint with leave to amend.
Plaintiffs filed Objections to the Report and Recommendation on May 28, 2014. (Doc. 17). Plaintiffs agree with Magistrate Judge Bowman's recommendation that based on the concessions and withdrawals of Plaintiffs, the claims for defamation, misrepresentation, negligent misrepresentation, malicious prosecution, wrongful interference with business relations and negligent infliction of emotional distress should be dismissed. Accordingly, the only remaining claims include abuse of authority, assault, battery, false imprisonment, negligence, gross negligence, and intentional infliction of emotional distress.
III. Standard of Review
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).
Magistrate Judge Bowman recommended dismissing Plaintiffs' Complaint with leave to amend because the construction of the Complaint made it difficult to discern which factual allegations supported each claim. In the Objection, Plaintiffs' counsel copies verbatim his argument as set forth in Plaintiffs' Response to Defendant's Motion. See (Doc. 14, p. 4 and Doc. 17, p. 2-3). Essentially, Plaintiff provides Fed.R.Civ.P. 8(a) in its entirety and summarily suggests that it is unnecessary for him to list each of his claims.
Plaintiffs have failed to plead each of their claims in separate counts and failed to identify which factual allegations support each claim. Instead the claims are provided in list format without any distinction. See (Doc. 1 at ¶22). The preferred practice of pleading is to state various claims for relief in separate counts. See Fed.R.Civ.P. 10(b). Failure to set forth claims in such a manner places the onus on the court to decipher which, if any, facts support which claims, as well as to determine whether a plaintiff is entitled to the relief sought. Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.C.Va. 1981). "It is Plaintiff's burden, not that of the court, to separately identify claims and state facts in support of each claim." Pinzon v. Jensen, 2009 WL 231164 *2 (E.D. Cal. 2009). Plaintiff "must separate each claim and state facts in support of each individual claim. The court will not sift through the complaint and guess which facts go to which claim." Id. Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds, in attempting to decipher a complaint, let alone a litigant that is represented by counsel.
As such, Magistrate Judge Bowman's recommendation that Plaintiffs' Complaint be dismissed with leave to file an First Amended Complaint that ...