United States District Court, D. Arizona
David C. Bury United States District Judge.
Second Amended Complaint asserts a battery claim based on the
Federal Tort Claims Act (FTCA). “Plaintiff alleges that
on April 11, 2011, he was physically injured during an
encounter with federal agents from United States Customs and
Border Protection (CBP) or United States Immigration and
Customs Enforcement (ICE). Plaintiff alleges he suffered a
severe head injury diagnosed as a post-concussive syndrome
that resulted in episodes over the following year of passing
out, hearing and sight problems, and forgetting things, and
resulted in his passing out while riding his motorcycle on
April 12, 2012.” (Order (Doc. 38) at 1.)
Court previously required the Plaintiff to disclose an expert
who would attest to a causal link between the battery and the
motorcycle accident. When he failed to produce such an
expert, the Government filed a Motion for Partial Summary
Judgment on its liability for Plaintiff's motorcycle
accident injuries. Plaintiff failed to file a Response to the
Motion for Partial Summary Judgment. On March 7, 2016, the
Government filed a motion asking this Court to rule
summarily, pursuant to Local Rule 7.2(i), to grant the Motion
for Partial Summary Judgment.
Rule 7.2(i) of this Court's Local Rules of Practice, a
failure to file a responsive pleading may be deemed consent
to the motion and this Court may dispose of the motion
summarily. “A motion for summary judgment cannot be
granted simply because the opposing party violated a local
rule.” Marshall v. Gates, 44 F.3d 722, 725
(9th Cir. 1995) (citing Henry v. Gill Industries
Inc., 983 F.2d 943, 950 (9th Cir. 1993). This is so
because a party may oppose a motion for summary judgment
without offering affidavits or any other materials in support
of its opposition. “‘Summary judgment may be
resisted and must be denied on no other grounds than that the
movant has failed to meet its burden of demonstrating the
absence of triable issues.'” Id. at 106
(quoting Henry, 983 F.2d at 950).
the Court has reviewed the Second Amended Complaint and
considered the merits of the Government's Motion for
Partial Summary Judgment. As Magistrate Judge MacDonald noted
in his Report and Recommendation (R&R), the Plaintiff
will have the burden of persuasion at trial. The Government
has challenged the sufficiency of his evidence to establish a
causal connection between the alleged battery and the
motorcycle accident. He has not responded. A trial would be
useless as Plaintiff has no evidence to rebut the
Government's assertion that he cannot establish this
essential element for liability related to the motorcycle
accident. The Government is entitled to partial summary
judgment as a matter of law. (R&R (Doc. 69) at 6.)
Plaintiff was also afforded an opportunity to object to the
Magistrate Judge's recommendation that this Court grant
the Government's Motion for Partial Summary Judgment.
Plaintiff did not file an Objection. .Pursuant to 28 U.S.C.
§ 636(b), this Court makes a de novo
determination as to those portions of the R&R to which
there are objections. 28 U.S.C. § 636(b)(1) ("A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
and recommendations to which objection is made.") To the
extent that no objection has been made, arguments to the
contrary have been waived. 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); see
also, 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
there are no objections and review has, therefore, been
waived, the Court nevertheless reviews at a minimum, de
novo, the Magistrate Judge's conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir.
2007) (citing Turner v. Duncan, 158 F.3d 449, 455
(9th Cir. 1998) (conclusions of law by a magistrate judge
reviewed de novo); Martinez v. Ylst, 951 F.2d 1153,
1156 (9th Cir. 1991) (failure to object standing alone will
not ordinarily waive question of law, but is a factor in
considering the propriety of finding waiver)). Here, the
Court finds that the Magistrate Judge's recommendation to
grant the Government partial summary judgment is thorough and
well-reasoned, without any clear error in law or fact.
See United States v. Remsing, 874 F.2d 614, 617-618
(9th Cir. 1989) (United States v. Remsing, 874 F.2d
614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. §
636(b)(1)(A) as providing for district court to reconsider
matters delegated to magistrate judge when there is clear
error or recommendation is contrary to law). The Court finds
that the Government's motion for a summary ruling,
pursuant to Rule 7.2(i), may be granted in respect to the
motion for partial summary judgment on the question of the
Government's liability for the motorcycle accident. The
Court remands this case to the ALJ for further consideration.
IT IS ORDERED that the Court adopts the Report and
Recommendation (Doc. 69).
FURTHER ORDERED that the Defendant's Motion for Summary
Disposition of the Motion for Partial Summary Judgment,
pursuant to Rule 7.2(i), (Doc. 57), is GRANTED.
FURTHER ORDERED that the Defendant's Motion for Partial
Summary Judgment (Dc. 52) is GRANTED.
FURTHER ORDERED that Plaintiffs battery claim remains pending
and the case remains referred to ...