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PostPosted: Fri Apr 20, 2007 5:23 am 
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Winn v. Unifund CCR Partners,
Slip Copy, 2007 WL 974099, D.Ariz., February 13, 2007 (No. CV 06-447-TUC-FRZ.)

ORDER


FRANK R. ZAPATA, United States District Judge.


I. Procedural Background

*1 Pending before the Court is Defendants' motion for judgment on the pleadings. United States Magistrate Judge Glenda E. Edmonds issued a Report and Recommendation recommending that the motion be granted by the Court. The Report and Recommendation indicated that any party could file written objections after being served with a copy of the Report and Recommendation. Plaintiff filed objections to the Report and Recommendation, Defendants filed a response to those objections, and Plaintiff filed a reply. Defendant did not file any objections to the Report and Recommendation.



II. Standard for Reviewing a Report and Recommendation

The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F .3d 734, 739 (7th Cir.1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D.Or.1998).



III. Plaintiff's Objections FN1


FN1. As the Report and Recommendation throughly discussed the relevant facts and law, the Court will not repeat that entire discussion; rather, the Court will only discuss these issues as necessary to resolve the objections filed by Plaintiff.




a. Incorrect Legal Standard

Plaintiff argues that the Report and Recommendation applied the incorrect legal standard in evaluating the motion for judgment on the pleadings, and that the Report and Recommendation improperly relied on facts outside the Complaint thereby converting the motion for judgment on the pleadings into a motion for summary judgment. The Court disagrees. The Report and Recommendation applied the proper legal standard and explicitly stated the proper standard as follows:

Hameroff moves for judgment on the pleadings pursuant to FED.R.CIV.P. 12(c). If, as here, the defendant argues the plaintiff failed to state a claim in his complaint, the motion is analyzed as though it were brought pursuant to FED.R.CIV.P. 12(b)(6). McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988).

A complaint may be dismissed for failure to state a claim upon which relief can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.â€

_________________
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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