Reyes v. Nikola Corporation

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 John Tenneson, et al., No. CV-23-02131-PHX-DJH (DMF) 10 Plaintiffs, ORDER v. Nikola Corporation, et al., 13 Defendants.

15 This matter is before the Court on the Report and Recommendation (“R&R”) issued by United States Magistrate Judge Deborah M. Fine on February 29, 2024 (Doc. 21). In the R&R, Judge Fine recommends rulings on the three motions: (1) Movant Randolph C. Reyes (“Reyes”) moves for appointment as lead plaintiff (Doc. 6); (2) Movants Federico Aucejo (“Aucejo”) and Pat Mutzel (“Mutzel”) move for appointment as co-lead plaintiffs (Doc. 7); and (3) Movants Caleb Peterson (“Peterson”) and Matthew Cool (“Cool”) move for appointment as co-lead plaintiffs (Doc. 8).

22 Judge Fine recommended the following: 23 - The Court should grant Reyes’ motion because his motion is timely under the Private Securities Litigation Reform Act, he maintains the largest financial interest in this matter, and he has made a 25 prima facie showing that satisfies the typicality and adequacy requirements under Federal Rule of Civil Procedure 23(a). (Doc. 21 at 7–15). Reyes also recommended qualified and suitable 27 lead and local liaison counsel. (Id. at 19–20). Therefore, the Court should appoint Reyes as lead plaintiff in this matter and approve Reyes’ selection of lead and local liaison counsel.

1 - The Court should deny Aucejo and Mutzel’s motion because failed to rebut the presumption that Reyes is the most adequate lead plaintiff. (Id. at 17–18). - The Court should deny Peterson and Cool’s motion because they failed to rebut the presumption that Reyes is the most adequate lead 5 plaintiff. (Id. at 18–19).

Judge Fine further advised the parties that they had fourteen days to file objections and that the failure to file timely objections “may result in the acceptance of the Report and Recommendation by the District Court without further review.” (Id. at 21 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). No objections have been filed and the time to do so has expired. (See Doc. 22). Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 13 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not the subject of an objection”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”).

Nonetheless, the Court has reviewed the R&R and agrees with its findings and recommendations. The Court will therefore accept the R&R and adopt Judge Fine’s recommendations. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”); Fed. R. Civ. P. 72(b)(3) (same).

Accordingly, IT IS ORDERED that United States Magistrate Judge Deborah M. Fine’s February 29, 2024, Report and Recommendation (Doc. 21) is ACCEPTED and ADOPTED as the Order of this Court. / / / / / / / / / 1 IT IS FURTHER ORDERED that the Motion of Randolph C. Reyes for Appointment as Lead Plaintiff and Approval of Selection of Counsel (Doc. 6) is 3|| GRANTED. Randolph C. Reyes is appointed as lead plaintiff in this matter and his selection of Levi & Korsinsky, LLP, as lead counsel and of Zwillinger Wulkan PLC as local liaison counsel is approved.

6 IT IS FURTHER ORDERED that the Motion of Federico Aucejo and Pat 7\| Mutzel’s for Appointment as Lead Plaintiff and Approval of Counsel (Doc. 7) is || DENIED.

9 IT IS FINALLY ORDERED that Motion of Caleb Peterson and Matthew Cool || for Appointment as Co-Lead Plaintiffs and Approval of Counsel (Doc. 8) is DENIED.

11 Dated this 24th day of April, 2024.

13 Gum □□ 14 norable'Diang4. Humetewa 15 United States District Judge -3-