United States District Court, D. Arizona
Honorable Raner C. Collins Chief United States District Judge
before the Court is Plaintiffs Emery and Angela
Chuckly’s motion to amend or correct the complaint
(Doc. 12) and remand to state court (Doc. 13), Defendants
Charles Bushman’s and John Perrill’s motion to
dismiss (Doc. 14), a Report and Recommendation (“R
& R”) prepared by Magistrate Judge Lynnette C.
Kimmins (Doc. 24), Defendants Bushman’s and
Perrill’s objection to the R & R (Doc. 25) and
Plaintiffs’ reply to the objections (Doc. 29). In the R
& R, Magistrate Judge Kimmins recommended that this Court
grant Plaintiffs’ motion to remand to state court and
deny as moot the remaining motions. For the following
reasons, this Court shall adopt the R & R as the holding
of this Court, grant Plaintiffs’ motion to remand to
state court and deny the remaining motions.
action arises from an insurance claim. On December 24, 2014,
Plaintiffs’ home suffered damage due to a microburst
and massive rain. On December 19, 2016, Plaintiffs Emery and
Angela Chuckly, on behalf of themselves and their minor
child, filed a complaint in Pima County Superior Court
alleging Defendant American Family Mutual Insurance
(“American Family”) breached a home owner’s
insurance contract with the Chucklys and committed bad faith
claims handling by failing to make payments to Plaintiffs for
the full amount due. Plaintiffs also allege that Defendant
Charles Bushman, an American Family claims manager, and John
Perrill, an American Family adjuster, aided and abetted
American Family in committing bad faith because Bushman and
Perrill substantially assisted American Family in breaching
its duty and both Bushman and Perill knew or should have
known that they were assisting the breach.
February 24, 2017, Defendants removed the case to this Court.
Defendants stated that this Court has diversity jurisdiction
because American Family is a resident of Wisconsin and
Plaintiffs are residents of Arizona. Defendants also argue
that this Court should disregard the Arizona residency of
Defendants Bushman and Perrill because they were fraudulently
March 27, 2017, Plaintiffs filed a motion to amend or correct
the complaint (Doc. 12) and a motion to remand to state court
(Doc. 13). On the same day, Defendants Bushman and Perrill
filed a motion to dismiss (Doc. 14).
7, 2017, Magistrate Judge Kimmins issued a R & R that
recommended that this Court grant Plaintiffs motion to remand
and deny the remaining motions as moot.
20, 2017, Defendants Bushman and Perrill filed an objection.
On July 7, 2017, Plaintiffs filed a reply.
duties of the district court in connection with a R & R
are set forth in Rule 72 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 636(b)(1). The district court
may “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).
the parties object to an 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.” 28 U.S.C. § 636(b)(1); see Thomas v.
Arn, 474 U.S. 140, 149-50 (1985). When no objection is
filed, the district court need not review the R & R de
novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13
(9th Cir.2005); United States v. Reyna-Tapia, 328
F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). The Court will
not disturb a magistrate judge’s order unless his
factual findings are clearly erroneous or his legal
conclusions are contrary to law. 28 U.S.C. §
636(b)(1)(A). “[T]he magistrate judge’s
decision…is entitled to great deference by the
district court.” United States v.
Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A
failure to raise an objection waives all objections to the
magistrate judge’s findings of fact. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to
object to a Magistrate Judge’s conclusion “is a
factor to be weighed in considering the propriety of finding
waiver of an issue on appeal.” Id. (internal
Defendants have filed an objection claiming that Arizona law
requires plaintiffs to plead a separate act to aid and abet a
primary and that this District has interpreted Arizona law to
require plaintiffs to plead a separate act to aid and abet a
R & R, Magistrate Judge Kimmins recommended granting the
motion to remand because the Arizona Court of Appeals and
this Court have reached divergent results and all ambiguity