Opinion
CIVIL NO.: 3:18-CV-01557
06-04-2019
GUAIRONEX MARTINEZ, Plaintiff, v. BROOKMONT HEALTH CARE CTR., Defendant.
(Judge Mariani) () REPORT AND RECOMMENDATION
The plaintiff, Guaironex Martinez ("Martinez"), initiated this negligence case by filing a complaint on July 31, 2018. Doc. 2. On February 25, 2019, the defendant filed a motion to dismiss the complaint and a supporting brief, arguing both that the court lack subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. Doc. 17-18.
We addressed the defendant's motion to dismiss in a report and recommendation on April 8, 2019. Doc. 22. We concluded that the court lacked subject matter jurisdiction and recommended that the court dismiss the complaint on that basis. Id. at 6. Judge Mariani adopted our report and recommendation in part on May 6, 2019, agreeing with our conclusion that Martinez had not pleaded facts establishing that the court had subject matter jurisdiction, but giving Martinez leave to file an amended complaint to attempt to cure the jurisdictional defects in his original complaint. Doc. 23 at 1-2. Per Judge Mariani's order, Martinez was required to file an amended complaint on or before May 27, 2019. See id. at 1.
On May 8, 2019, Martinez filed twenty-three pages of medical records, none of which address the issue of this court's subject matter jurisdiction. See doc. 24. To date, Martinez has not filed an amended complaint as required by Judge Mariani's order, nor has he filed any other documents since filing the twenty-three pages of medical records.
Accordingly, given Martinez's failure to file an amended complaint, we recommend that the court dismiss this case for lack of subject matter jurisdiction for the reasons set forth in our April 8, 2019 report and recommendation.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before
the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 4th day of June, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge