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Scott v. Hertz

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Oct 22, 2019
No. CV-19-04800-PHX-ESW (D. Ariz. Oct. 22, 2019)

Opinion

No. CV-19-04800-PHX-ESW

10-22-2019

Gene Edward Scott, II, Plaintiff, v. Hertz, Defendant.


ORDER

Pending before the Court are Plaintiff's Complaint (Doc. 1) and Plaintiff's Motion to Dismiss Case without Fault (Doc. 16). The matter was referred to Magistrate Judge Eileen S. Willett for a Report and Recommendation. (Doc. 17.) On September 4, 2019, the Magistrate Judge filed a Report and Recommendation, recommending the Court dismiss without prejudice Plaintiff's Complaint and deny as moot Plaintiff's Motion to Dismiss Case without Fault. (Id.) To date, no objections have been filed.

I. STANDARD OF REVIEW

When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report ... 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." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir. 1974)).

By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate Judge's factual findings, but not necessarily the Magistrate Judge's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to the Magistrate Judge's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).

II. DISCUSSION

On July 22, 2019, Plaintiff filed a pro se Complaint, but failed to state sufficient facts to support a cognizable legal theory pursuant to Federal Rule of Civil Procedure 8(a). Magistrate Judge Willett granted Plaintiff leave to file a First Amended Complaint to cure the deficiencies. On August 28, 2019, Plaintiff filed a First Amended Complaint, but failed to comply with Rules 7(b)(1), 8(a), and 11(a). On September 3, 2019, Plaintiff filed a Motion to Dismiss Case without Fault, but failed to sign the motion pursuant to Rule 11(a).

On September 4, 2019, Magistrate Judge Willett filed a Report and Recommendation recommending Plaintiff's Complaint be dismissed without prejudice and Plaintiff's motion be denied as moot, and ordering Plaintiff's First Amended Complaint be struck.

Ordinarily, the Court would grant Plaintiff's motion; however, as detailed in the Report and Recommendation, Plaintiff failed to sign the motion pursuant to Rule 11(a). Nonetheless, incorporating and adopting Magistrate Judge Willett's Report and Recommendation has the same result as granting Plaintiff's Motion to Dismiss.

Thus, having reviewed the Report and Recommendation of the Magistrate Judge, and no objections having been made by any party thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.

III. CONCLUSION

Accordingly, for the reasons set forth,

IT IS HEREBY ORDERED adopting the Report and Recommendation of the Magistrate Judge. (Doc. 17.)

IT IS FURTHER ORDERED dismissing without prejudice Plaintiff's Complaint. (Doc. 1.)

IT IS FURTHER ORDERED denying as moot Plaintiff's Motion to Dismiss without fault. (Doc. 16.)

Dated this 22nd day of October, 2019.

/s/_________

Honorable Stephen M. McNamee

Senior United States District Judge


Summaries of

Scott v. Hertz

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Oct 22, 2019
No. CV-19-04800-PHX-ESW (D. Ariz. Oct. 22, 2019)
Case details for

Scott v. Hertz

Case Details

Full title:Gene Edward Scott, II, Plaintiff, v. Hertz, Defendant.

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Oct 22, 2019

Citations

No. CV-19-04800-PHX-ESW (D. Ariz. Oct. 22, 2019)