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Shupe v. Cricket Communications, Inc.

United States District Court, Ninth Circuit

January 13, 2014

RICHARD SHUPE, Plaintiff,
v.
CRICKET COMMUNICATIONS, INC., Defendant.

ORDER

CINDY K. JORGENSON, District Judge.

On December 13, 2013, Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation (Doc. 22) in which he recommended that the Motion to Dismiss (Doc. 4) be denied as moot, the Motion to Dismiss Amended Complaint (Doc. 13) be granted with leave to amend, the Motions to Remand (Docs. 5 and 12) be denied, and the Motion to Amend or Correct the Amended Complaint (Doc. 19) be denied. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b). No objection has been filed.

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require [] some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Rather, this Court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Id. at 149. Nonetheless, the Court has reviewed and considered the Report and Recommendation and finds it well-supported and well-taken.

Amended Complaint

The Court, as discussed by the magistrate judge, has provided the reasons for the dismissal so Plaintiff can make an intelligent decision whether to file a Third Amended Complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). Additionally, Plaintiff should take notice that if he fails to timely comply with every provision of this Order, this action will be dismissed pursuant to Fed.R.Civ.P. 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).

Accordingly, IT IS ORDERED:

1. The Report and Recommendation (Doc. 22) is ADOPTED.

2. The Motion to Dismiss (Doc. 4) is DENIED AS MOOT.

3. The Motions to Remand (Docs. 5 and 12) are DENIED.

4. The Motion to Amend or Correct the Amended Complaint (Doc. 19) is DENIED.

5. The Motion to Dismiss Amended Complaint (Doc. 13) is GRANTED WITH LEAVE TO AMEND. Plaintiff shall have thirty (30) days from the date of filing this Order to file a Third Amended Complaint.

6. Any Third Amended Complaint must be retyped or rewritten in its entirety and may not incorporate any part of the prior complaints or subsequent pleadings by reference. Any Third Amended Complaint submitted by Plaintiff shall be clearly designated as a Third Amended Complaint on the face of the document. Any Third Amended Complaint shall comply with the requirements of Fed.R.Civ.P. 8(a), 10(a), and 11(a).

7. The Clerk of the Court is DIRECTED to enter a judgment of dismissal, without prejudice, without further notice to Plaintiff, if Plaintiff fails to file a Third Amended Complaint within thirty (30) days of the filing date of this Order.

8. A clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge/Magistrate Judge to whom the case is assigned. See L.R.Civ. 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff.

8. At all times during the pendency of this action, Plaintiff shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS". The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Plaintiff shall serve a copy of the Notice of Change of Address on all served opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).


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