Southwest Heritage Bank v. Coury et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Southwest Heritage Bank,
Plaintiff,
v.
Steven C Coury, et al.,
Defendants.
No. CV-25-00047-PHX-SMM (JZB)
ORDER
This matter was assigned to Magistrate Judge John Z. Boyle. (Doc. 4). On
February 2, 2026, the Magistrate Judge filed a Report and Recommendation with this
Court.1 (Doc. 54). The Magistrate Judge recommends that this Court deny Plaintiff’s
Motion for Default Judgment Against Defendant Lincoln J. Moore (“Defendant Moore”)
1 	This case is assigned to a Magistrate Judge. However, not all parties have
consented to the jurisdiction of the Magistrate Judge. Thus, the matter is before this Court
pursuant to General Order 21-25, which states in relevant part:
When a United States Magistrate Judge to whom a civil action has been
assigned 	pursuant 	to 	Local 	Rule 	3.7(a)(1) 	considers 	dismissal 	to 	be
appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1)
due to incomplete status of election by the parties to consent or not consent
to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and
Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court
Judges to review and, if deemed suitable, to sign the order of dismissal on
my behalf:
Phoenix/Prescott: 	Senior 	United 	States 	District 	Judge 	Stephen 	M.
McNamee
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(Doc. 38) without prejudice because the Eitel factors weigh against entry of default
judgment and recommends that the Court deny Plaintiff’s Motion for Attorney’s Fees
(Doc. 40) without prejudice because there is no judgment against Defendant Moore.
(Doc. 	54). 	The 	Magistrate 	Judge 	further 	recommended 	that, 	if 	the 	previous
recommendations are adopted, Plaintiff be granted thirty days to file an amended
complaint. (Id.) After the Magistrate Judge filed the Report and Recommendation,
Plaintiff filed a Motion for Leave to Amend Complaint and Withdrawal of Default
Judgment Pending the Filing of Amended Complaint. (Doc. 55). Due to Plaintiff’s
intervening 	Motion, 	the 	Court 	rejects 	the 	Magistrate 	Judge’s 	Report 	and
Recommendation.
STANDARD OF REVIEW
The 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)(C); see Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the
service of a copy of the Magistrate’s recommendation within which to file specific
written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to
object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo
review of the Magistrate Judge’s factual findings and waives all objections to those
findings on appeal. See 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.
DISCUSSION
Having reviewed the Report and Recommendation of the Magistrate Judge and
Plaintiff’s intervening Motion, the Court hereby declines to adopt the Magistrate Judge’s
Report and Recommendation because it is now moot.
The Magistrate Judge recommended that this Court deny Plaintiff’s Motion for
Default Judgment and allow Plaintiff thirty days to file an amended complaint because
Plaintiff did not state a claim that complies with Fed. R. Civ. P. 9(b). (Doc. 54). After the
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Magistrate Judge filed the Report and Recommendation, Plaintiff filed a Motion for
Leave to Amend Complaint and Withdrawal of Default Judgment Pending the Filing of
Amended Complaint. (Doc. 55). Due to Plaintiff’s intervening Motion, the Court declines
to adopt the Magistrate Judge’s Report and Recommendation.
Accordingly, for the reasons set forth,
IT IS ORDERED rejecting the Report and Recommendation of the Magistrate
Judge because it is now moot. (Doc. 54).
Dated this 18th day of February, 2026.
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