Alvarez v. Morris-Shea Bridge Company, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SERGIO ALVAREZ, No. 1:23-cv-01725-JLT-BAM 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, OVERRULING 13 v. PLAINTIFF’S OBJECTIONS TO REMOVAL, DENYING PLAINTIFF’S MOTION TO 14 MORRIS-SHEA BRIDGE COMPANY, REMAND, GRANTING DEFENDANT’S INC., MOTION TO DISMISS, AND DISMISSING 15 PLAINTIFF’S COMPLAINT WITHOUT Defendant. PREJUDICE AND WITH LEAVE TO 16 AMEND 17 (Docs. 4, 6, 14) 18 Sergio Alvarez seeks damages against Morris-Shea Bridge Company, Inc. in the amount 19 of $100,000, for fraud. (See generally Doc. 1-3.) Morris-Shea removed the action from Fresno 20 County Superior Court based on diversity of citizenship. (Id.) Plaintiff objected to removal. 21 (Doc. 6.) On December 21, 2023, Morris-Shea filed a motion to dismiss the Complaint pursuant 22 to Federal Rule of Civil Procedure 12(b)(6) or for a more definite statement under Rule 12(e). 23 (Doc. 4.) The Court referred the motion to dismiss to the Magistrate Judge for preparation of 24 findings and recommendations. (Doc. 7.) 25 On April 22, 2024, the Magistrate Judge issued Findings and Recommendations that 26 recommended (1) Plaintiff’s objections to removal be overruled and, as construed, motion for 27 remand be denied, (2) Morris-Shea’s motion to dismiss be granted, and (3) Plaintiff’s Complaint 28 1 | be dismissed without prejudice and with leave to amend. (Doc. 14.) 2 The Court served the Findings and Recommendations on all parties on April 22, 2024, and 3 | notified them that any objections were due within 14 days. (Doc. 14 at 6.) The Court also 4 | informed the parties that “the failure to file objections within the specified time may result in the 5 | waiver of the ‘right to challenge the magistrate’s factual findings’ on appeal.” (/d. at 6-7, quoting 6 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).) No objections were filed and the time 7 | to do so has expired. 8 According to 28 U.S.C. § 636 (b)(1)(c), this Court conducted a de novo review of the case. 9 | Having carefully reviewed the entire matter, the Court concludes that the findings and 10 | recommendations are supported by the record and proper analysis. Accordingly, the Court 11 | ORDERS: 12 1. The Findings and Recommendations issued on April 22, 2024 (Doc. 14) are 13 ADOPTED. 14 2. Plaintiff's objections to removal are OVERRULED and, as construed, Plaintiff's 15 motion to remand is DENIED (Doc. 6). 16 3. Morris-Shea’s motion to dismiss (Doc. 4) is GRANTED. 17 4. Plaintiff's Complaint is DISMISSED without prejudice and with leave to amend. 18 5. Plaintiff shall file an amended complaint within 21 days of the date of service of this 19 order. 20 6. Plaintiff is advised that the failure to file an amended complaint will result in dismissal 21 of this action without further notice. 22 73 IT IS SO ORDERED. 24 | Dated: _ May 14, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 25 26 27 28