Scott v. Hertz ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gene Edward Scott, II, No. CV-19-04800-PHX-ESW 10 Plaintiff, ORDER 11 v. 12 Hertz, 13 Defendant. 14 15 Pending before the Court are Plaintiff’s Complaint (Doc. 1) and Plaintiff’s Motion 16 to Dismiss Case without Fault (Doc. 16). The matter was referred to Magistrate Judge 17 Eileen S. Willett for a Report and Recommendation. (Doc. 17.) On September 4, 2019, the 18 Magistrate Judge filed a Report and Recommendation, recommending the Court dismiss 19 without prejudice Plaintiff’s Complaint and deny as moot Plaintiff’s Motion to Dismiss 20 Case without Fault. (Id.) To date, no objections have been filed. 21 I. STANDARD OF REVIEW 22 When reviewing a Magistrate Judge’s Report and Recommendation, this Court must 23 “make a de novo determination of those portions of the report … to which objection is 24 made,” and “may accept, reject or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also 26 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified 27 Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge’s 28 recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s 1 factual findings; the Court then may decide the dispositive motion on the applicable law. 2 Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States 3 Dist. Court, 501 F.2d 196 (9th Cir. 1974)). 4 By failing to object to a Report and Recommendation, a party waives its right to 5 challenge the Magistrate Judge’s factual findings, but not necessarily the Magistrate 6 Judge’s legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 7 449, 455 (9th Cir. 1998) (failure to object to the Magistrate Judge’s legal conclusion “is a 8 factor to be weighed in considering the propriety of finding waiver of an issue on appeal”); 9 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 10 1185, 1187 (9th Cir. 1980)). 11 II. DISCUSSION 12 On July 22, 2019, Plaintiff filed a pro se Complaint, but failed to state sufficient 13 facts to support a cognizable legal theory pursuant to Federal Rule of Civil Procedure 8(a). 14 Magistrate Judge Willett granted Plaintiff leave to file a First Amended Complaint to cure 15 the deficiencies. On August 28, 2019, Plaintiff filed a First Amended Complaint, but failed 16 to comply with Rules 7(b)(1), 8(a), and 11(a). On September 3, 2019, Plaintiff filed a 17 Motion to Dismiss Case without Fault, but failed to sign the motion pursuant to Rule 11(a). 18 On September 4, 2019, Magistrate Judge Willett filed a Report and 19 Recommendation recommending Plaintiff’s Complaint be dismissed without prejudice and 20 Plaintiff’s motion be denied as moot, and ordering Plaintiff’s First Amended Complaint be 21 struck. 22 Ordinarily, the Court would grant Plaintiff’s motion; however, as detailed in the 23 Report and Recommendation, Plaintiff failed to sign the motion pursuant to Rule 11(a). 24 Nonetheless, incorporating and adopting Magistrate Judge Willett’s Report and 25 Recommendation has the same result as granting Plaintiff’s Motion to Dismiss. 26 Thus, having reviewed the Report and Recommendation of the Magistrate Judge, 27 and no objections having been made by any party thereto, the Court hereby incorporates 28 and adopts the Magistrate Judge’s Report and Recommendation. I. CONCLUSION 2 Accordingly, for the reasons set forth, 3 IT IS HEREBY ORDERED adopting the Report and Recommendation of the Magistrate Judge. (Doc. 17.) 5 IT IS FURTHER ORDERED dismissing without prejudice Plaintiff's Complaint. (Doc. 1.) 7 IT IS FURTHER ORDERED denying as moot Plaintiff's Motion to Dismiss 8 || without fault. (Doc. 16.) 9 Dated this 22nd day of October, 2019. 10 11 LiggleA oh 12 Honofable Stephen M. McNamee 3 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-