Opinion
4:21-cv-07710-YGR
12-03-2021
Ernesto Dugar, Plaintiff, v. Raymond Chan, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; ORDER DENYING MOTION TO SET ASIDE THE JUDGMENT; ORDER DISMISSING CASE WITH PREJUDICE
RE: DKT. NOS. 9, 13
YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT JUDGE
The Court has reviewed Magistrate Judge Donna M. Ryu's Report and Recommendation (Dkt. No. 13, “Report”) recommending dismissing plaintiff's first amended complaint without leave to amend. No. party filed a timely objection to the Report. Based on the Court's review of the record, including Magistrate Judge Ryu's first screening order (Dkt. No. 11), the Court finds the Report correct, well-reasoned, and thorough, and Adopts it in every respect.
Additionally, on October 14, 2021, plaintiff filed a Motion to Set Aside the Judgment and Any Default, and to Quash Any Writ of Possession/Execution. (Dkt. No. 9). The motion invokes various procedural sections of the California Code of Civil Procedure related to pleading, judgments, and jurisdiction in state court. The motion also reiterates many of the factual allegations contained in plaintiff's first amended complaint. No. default or judgment had been entered against plaintiff in the proceedings before this Court at the time his motion was filed. Therefore, there was no judgment or default to provide relief from, and plaintiff's motion is Denied.
Accordingly, and for the reasons set forth in the Report:
1. The Report is Adopted in full.
2. The Motion to Set Aside the Judgment and Any Default, and to Quash Any Writ of Possession/Execution is Denied.
3. The action herein is Dismissed with Prejudice for failure to state a claim on which relief may be granted given the lack of subject matter jurisdiction over plaintiffs claims. 28 U.S.C. § 1915(e)(2)(B).
This Order terminates the case and Docket Numbers 9 and 13. The Clerk of the Court is directed to close this case.
It Is So Ordered.