Opinion
Civil Action No. 05-cv-01817-PSF-CBS.
March 17, 2006
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE DATED MARCH 2, 2006
This matter is before the Court on the Recommendation of Magistrate Judge Shaffer entered March 2, 2006 (Dkt. # 122), in which he recommends dismissal without prejudice of the Second Amended Complaint filed by plaintiff Vogt on February 9, 2006 (Dkt. # 102). More than 14 days have elapsed since the Recommendation and plaintiff has filed no objection to the Recommendation. Defendants filed objections (Dkt. ## 134, 135 and 138) requesting that the dismissal be with prejudice.
The Court has reviewed the Recommendation and agrees that the Second Amended Complaint is subject to dismissal for all the reasons set forth in the Recommendation of the Magistrate Judge. Moreover, the Court also agrees with the statement by the Magistrate Judge that "it would be appropriate for the court to recommend dismissal of the SAC [Second Amended Complaint] on the merits and with prejudice." Recommendation at 18. The Court also agrees with the Objections filed by Defendants Stephen Murray and Peak Performance Technologies, Inc. that the dismissal should be with prejudice.
Plaintiff has had three opportunities to file an appropriate complaint, as his original filing was permitted to be amended twice. Plaintiff has failed to submit a proper filing. Plaintiff Vogt does not appear to have the willingness or ability to prepare a proper complaint. What is true in baseball is generally observed in federal pleading practice, as can be seen from the cases cited by Defendant Stephen Murray, D.D.S.'s Objection: "Three strikes and you're out."
CONCLUSION
For the reasons set forth above and in the Recommendation of the Magistrate Judge, the Second Amended Complaint (Dkt. # 102) is DISMISSED with prejudice. All other pending motions in this case are DENIED as moot. The Clerk of the Court is DIRECTED to enter judgment accordingly.