Gallegos v. Dunnion Law Firm ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREG GALLEGOS, No. 1:19-cv-01168-LJO-EPG 12 Plaintiff, ORDER VACATING ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; 13 v. DIRECTING CLERK OF COURT TO REOPEN CASE AND SEND PLAINTIFF A 14 DUNNION LAW FIRM, COPY OF THE FINDINGS AND RECOMMENDATIONS; AND PROVIDING 15 Defendant. PLAINTIFF WITH ADDITIONAL TIME TO FILE OBJECTIONS TO THE FINDINGS 16 AND RECOMMENDATIONS 17 (ECF Nos. 6, 7, 8, 10) 18 TWENTY-ONE (21) DAY DEADLINE 19 Plaintiff, Greg Gallegos, is proceeding pro se in this action. The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On September 23, 2016, the assigned Magistrate Judge entered findings and 22 recommendations recommending that this action be dismissed without prejudice and without 23 leave to amend for lack of subject-matter jurisdiction. (ECF No. 6.) The findings and 24 recommendations were served on Plaintiff and contained notice that any objections thereto were 25 to be filed within twenty-one days. (Id.) On November 1, 2019, Plaintiff filed a document titled 26 “Certificate of Service #11504.” (ECF No. 7.) Although the document did not indicate that it was 27 intended to be objections to the Magistrate Judge’s findings and recommendations, out of an 28 1 abundance of caution, the Court construed the document as objections and gave those objections 2 full consideration. 3 On November 7, 2019, after conducting a de novo review of the case, including Plaintiff’s 4 filing, the Court entered an order adopting the findings and recommendations; dismissing the 5 action, without prejudice, for lack of subject matter jurisdiction; and directing the clerk of the 6 court to close the case. (ECF No. 8.) 7 On November 25, 2019, Plaintiff filed another document titled “Certificate of Service 8 11504.” (ECF No. 10.) The Court construes the document as a motion for reconsideration of the 9 Court’s order adopting the findings and recommendations. 10 In his motion for reconsideration, Plaintiff indicates that his previous filing was not 11 intended to be an objection, but instead only as a notice to the Court that Plaintiff had a heart 12 attack and that this entitled him to increased damages. (See ECF No. 10.) Plaintiff also contends 13 that “no one ever gave any 21 day to reply, that was later only in L. ONeill letter of 11-6- 14 2019. . . .” (Id.) The Court construes this language as indicating that Plaintiff was not given 15 timely notice that he had twenty-one days to file objections to the findings and recommendations. 16 The Court will also assume that Plaintiff did not receive a copy of the findings and 17 recommendations, which contains notice that Plaintiff had twenty-one days to file objections. 18 (See ECF No. 6.) Based this assumption and Plaintiff’s representations, the Court will vacate its 19 order adopting the findings and recommendations, provide Plaintiff with a copy of the findings 20 and recommendations, and provide Plaintiff with an opportunity to file, with twenty-one days of 21 the date this order is entered, objections to the findings and recommendations. 22 IT IS ORDERED: 23 1. Plaintiff’s motion for reconsideration (ECF No. 10) is GRANTED to the extent 24 Plaintiff seeks an opportunity to file objections to the findings and recommendations. 25 Such objections shall be filed within twenty-one (21) days of the date this order is 26 entered. 27 2. The order adopting the findings and recommendations of the Magistrate Judge, 28 entered November 7, 2019 (ECF No. 8), is VACATED. The Clerk of the Court is 1 directed to REOPEN this case. 2 3. The Clerk of the Court is directed to SEND Plaintiff a copy of the Magistrate Judge’s 3 findings and recommendations, entered on September 23, 2019 (ECF No. 6). 4 4. Within twenty-one (21) days from the date this order is entered, Plaintiff may file 5 written objections to the findings and recommendations. Such a document should be 6 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 7 Plaintiff is advised that failure to file objections within the specified time may result in 8 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 9 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: November 27, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28