Shupe et al v. Cricket Communications Incorporated

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered the 22 Report and Recommendation is adopted. It is further Ordered the 4 MOTION to Dismiss for Lack of Jurisdiction / Motion to Dismiss & Compel Arbitration is denied as moot, Th e Motions to Dismiss (Docs. 5 and 12 ) are denied, the Motion to Amend or Correct the Amended Complaint (Doc. 19 ) is denied, and the Motion to Dismiss Amended Complaint (Doc. 13 ) is granted with leave to amend. It is further Ordered Plaintif f shall have 30 days from the date of filing this Order to file a Third Amended Complaint. 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 30 days of the filing date of this Order (see attached PDF for more information). Signed by Judge Cindy K Jorgenson on 1/13/2014. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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RICHARD SHUPE,

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Plaintiff,

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vs.

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CRICKET COMMUNICATIONS,
INC.,

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Defendant.
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No. CIV 13-1052-TUC-CKJ (BPV)
ORDER

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On December 13, 2013, Magistrate Judge Bernardo P. Velasco issued a Report and

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Recommendation (Doc. 22) in which he recommended that the Motion to Dismiss (Doc. 4)

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be denied as moot, the Motion to Dismiss Amended Complaint (Doc. 13) be granted with

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leave to amend, the Motions to Remand (Docs. 5 and 12) be denied, and the Motion to

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Amend or Correct the Amended Complaint (Doc. 19) be denied. The magistrate judge

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advised the parties that written objections to the Report and Recommendation were to be

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filed within fourteen days of service of a copy of the Report and Recommendation pursuant

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to 28 U.S.C. § 636(b). No objection has been filed.

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This Court "may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

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§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

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this Court is required to "make a de novo determination of those portions of the [report and

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recommendation] to which objection is made." The statute does not "require [] some lesser

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review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50

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(1985). Rather, this Court is not required to conduct "any review at all . . . of any issue that

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is not the subject of an objection." Id. at 149. Nonetheless, the Court has reviewed and

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considered the Report and Recommendation and finds it well-supported and well-taken.

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Amended Complaint

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The Court, as discussed by the magistrate judge, has provided the reasons for the

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dismissal so Plaintiff can make an intelligent decision whether to file a Third Amended

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Complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832

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F.2d 1132 (9th Cir. 1987). Additionally, Plaintiff should take notice that if he fails to timely

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comply with every provision of this Order, this action will be dismissed pursuant to

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Fed.R.Civ.P. 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may

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dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915

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(1992).

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Accordingly, IT IS ORDERED:

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1.

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

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2.

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

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3.

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

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4.

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

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DENIED.
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The Motion to Dismiss Amended Complaint (Doc. 13) is GRANTED WITH

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LEAVE TO AMEND. Plaintiff shall have thirty (30) days from the date of filing this Order

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to file a Third Amended Complaint.

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Any Third Amended Complaint must be retyped or rewritten in its entirety and

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may not incorporate any part of the prior complaints or subsequent pleadings by reference.

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Any Third Amended Complaint submitted by Plaintiff shall be clearly designated as a Third

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Amended Complaint on the face of the document. Any Third Amended Complaint shall

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comply with the requirements of Fed.R.Civ.P. 8(a), 10(a), and 11(a).

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The Clerk of the Court is DIRECTED to enter a judgment of dismissal, without

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prejudice, without further notice to Plaintiff, if Plaintiff fails to file a Third Amended

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Complaint within thirty (30) days of the filing date of this Order.

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A clear, legible copy of every pleading or other document filed SHALL

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ACCOMPANY each original pleading or other document filed with the Clerk for use by the

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District Judge/Magistrate Judge to whom the case is assigned. See L.R.Civ. 5.4. Failure to

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submit a copy along with the original pleading or document will result in the pleading

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or document being stricken without further notice to Plaintiff.

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At all times during the pendency of this action, Plaintiff shall immediately

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advise the Court of any change of address and its effective date. Such notice shall be

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captioned "NOTICE OF CHANGE OF ADDRESS".

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information pertaining to the change of address and its effective date. The notice shall not

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include any motions for any other relief. Plaintiff shall serve a copy of the Notice of Change

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of Address on all served opposing parties. Failure to file a NOTICE OF CHANGE OF

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ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to

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Fed.R.Civ.P. 41(b).

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DATED this 13th day of January, 2014.

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The notice shall contain only