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Williams v. Resler, 16cv2538-CAB-KSC. (2018)

Court: District Court, N.D. California Number: infdco20180925a78 Visitors: 7
Filed: Sep. 24, 2018
Latest Update: Sep. 24, 2018
Summary: ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 69]; AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [Doc. No. 60] CATHY ANN BENCIVENGO , District Judge . On May 10, 2018, Defendant S. Resler filed a motion to dismiss the Second Amended Complaint ("SAC"). [Doc. No. 60.] On July 20, 2018, Plaintiff filed an opposition. [Doc. No. 67.] On July 27, 2018, Defendant filed a reply to the opposition. [Doc. No. 68.] On August 24, 2018, Magi
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ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [Doc. No. 69]; AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [Doc. No. 60]

On May 10, 2018, Defendant S. Resler filed a motion to dismiss the Second Amended Complaint ("SAC"). [Doc. No. 60.] On July 20, 2018, Plaintiff filed an opposition. [Doc. No. 67.] On July 27, 2018, Defendant filed a reply to the opposition. [Doc. No. 68.] On August 24, 2018, Magistrate Judge Karen S. Crawford prepared a Report and Recommendation ("Report") recommending that the motion to dismiss the SAC be granted in part and denied in part. [Doc. No. 69.] The Report also ordered that any objections were to be filed by September 14, 2018. [Report at 13.] To date, no objections have been filed, nor have there been any requests for an extension of time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. However, "[t]he statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Id. In the absence of timely objection, the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbel v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

Here, neither party has timely filed objections to the Report. Having reviewed it, the Court finds that it is thorough, well-reasoned, and contains no clear error. Accordingly, the Court hereby (1) ADOPTS Magistrate Judge Crawford's Report and Recommendation [Doc. No. 59]; and (2) GRANTS IN PART AND DENIES IN PART Defendant's motion to dismiss the SAC [Doc. No. 60] as follows:

1) The motion is GRANTED WITH LEAVE TO AMEND as to the events of December 27, 2015; 2) The motion is DENIED as to the events of January 20, 2016. 3) If Plaintiff wishes to amend the SAC as to the events of December 17, 2015, he shall file a Third Amended Complaint (TAC) by October 26, 2018. Plaintiff is reminded that his pleading must be identified as his Third Amended Complaint, include Civil Case No. 16cv2538-CAB-KSC in its caption, name the all parties he wishes to sue, and allege all the claims he wishes to pursue in one single, clear, and concise pleading. 4) If Plaintiff does not file a TAC by October 26, 2018, then Defendant shall answer the SAC, as amended by this Order, by November 9, 2018.

IT IS SO ORDERED.

Source:  Leagle

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