(PS) Jones v. Velocity Technology Solutions ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARRISON JONES, No. 2:19-cv-2374-KJM-EFB PS 12 Plaintiff, 13 v. ORDER 14 VELOCITY TECHNOLOGY SOLUTIONS LLC; STEVE KLOEBLEN; 15 SUSAN HALTOPP; MICHAEL BALDWIN; SHANA COLEMAN; 16 VICKIE LEROUX; J.C. ODOM; CHAD CARLSON; and CHRIS HELLER, 17 Defendants. 18 19 20 On July 31, and August 14, 2020, the magistrate judge filed findings and 21 recommendations, which were served on the parties and which contained notice that any 22 objections to the findings and recommendations were to be filed within fourteen days. Defendant 23 Velocity Technology Solutions, Inc. (“Velocity”) filed objections on August 14, 2020, which this 24 court has considered. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 26 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 27 the findings and recommendations to be supported by the record and by the proper analysis. 28 ///// 1 This court reviews de novo those portions of the proposed findings of fact to 2 which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. 3 Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). As to any portion of the 4 proposed findings of fact to which no objection has been made, the court assumes its correctness 5 and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 6 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. 7 Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 8 The court has reviewed the applicable legal standards and, good cause appearing, 9 concludes that it is appropriate to adopt the Findings and Recommendations in full. In the July 31 10 findings and recommendations, the assigned magistrate judge recommended the court deny 11 Velocity’s motion to dismiss the complaint based on Federal Rules of Civil Procedure (“FRCP”) 12 12(b)(2) and 12(b)(5) for lack of personal jurisdiction. ECF No. 29. The magistrate judge also 13 screened the complaint under 28 U.S.C. § 1915(e)(2) and ordered plaintiff’s claims, with the 14 exception of an FMLA claim against Velocity, dismissed with leave to amend. Id. at 3. On 15 August 14, 2020, after plaintiff elected not to amend his complaint, the magistrate judge 16 recommended dismissal of plaintiff’s claims, with the potentially cognizable FMLA claim against 17 Velocity, be dismissed without prejudice. ECF No. 34. In its objections to these findings and 18 recommendations, Velocity does not challenge any of the magistrate judge’s recommendations— 19 i.e., that its motion to dismiss be denied or that certain claims be dismissed without prejudice. 20 Instead, Velocity objects to the magistrate judge’s order holding that the complaint alleges a 21 potentially viable FMLA claim against it. ECF No. 35. Velocity argues that plaintiff’s FMLA 22 claim should also have been dismissed for failure to state a claim. Id. at 3–4. Velocity’s 23 objections, which are not directed towards either of the pending findings and recommendations, 24 are not a proper vehicle for challenging the sufficiency of the complaint’s allegations. Instead, 25 such a challenge must be made by filing a properly noticed motion invoking Federal Rule of Civil 26 Procedure 12(b)(6). 27 ///// 28 ///// 1 Accordingly, IT IS ORDERED that: 2 1. The Findings and Recommendations filed July 31, 2020, are ADOPTED; 3 2. Defendant Velocity’s motion to dismiss for insufficient process (ECF No. 5) is denied; 4 3. The Findings and Recommendations filed August 14, 2020, are adopted; 5 4. Plaintiff’s claims, with the exception of his FMLA claim against Velocity, are 6 dismissed without prejudice; and 7 5. This matter is referred back to the assigned magistrate judge for all further 8 proceedings. 9 DATED: October 5, 2020. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28