Aery v. Arhart
- Katherine Menendez
- 0:21-cv-02375
- U.S. District Court · District of Minnesota
- 2
In Aery v. Bender, Judge Menendez dismissed the claims against Brian Birt without prejudice after reviewing an unopposed recommendation.
James Paul Aery's action against Brian Birt was dismissed without prejudice; the order does not state the disposition of claims against the other named defendants.
What happened
In Aery v. Bender et al., the court considered a report and recommendation from Magistrate Judge Leo I. Brisbois. The report was dated March 1, 2023, and no objections were filed. The order also states that James Paul Aery had not participated in the case for more than five months.
Because no objections were filed, the court reviewed the report and recommendation for clear error rather than conducting a fresh review of disputed issues. The court said its review of the recommendation and the case record found no error, clear or otherwise.
The court ordered that the action against Brian Birt be dismissed without prejudice, meaning the dismissal did not bar refiling. Judge Katherine M. Menendez signed the order on April 3, 2023.
The detailed version
- Aery v. Arhart · No. 0:21-cv-02375
- Katherine Menendez
- Apr. 3, 2023
Background
James Paul Aery was the plaintiff, and Nick Bender and other defendants were named in the caption. The order specifically addresses the action as alleged against Brian Birt. The court considered a report and recommendation (a magistrate judge's proposed ruling) issued by United States Magistrate Judge Leo I. Brisbois on March 1, 2023. No objections were filed within the permitted period. The court also stated that Aery had not engaged with the litigation in any way for more than five months.
Court's Review
Under 28 U.S.C. § 636(b)(1) and the District of Minnesota's local rule, the court conducts a fresh review of portions of a report and recommendation when specific objections are made. When there are no objections, the court reviews the recommendation for clear error, meaning an obvious mistake. The court reviewed the report and recommendation and the case record and found no error, clear or otherwise.
Ruling
The court ordered that the action against Brian Birt be dismissed without prejudice. The order directed that judgment be entered accordingly. Judge Katherine M. Menendez signed the order on April 3, 2023. The opinion does not state the underlying reason for the recommended dismissal beyond the facts described above.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.