Xavier Nailing v. Donna Navarro et al

Filing 75

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Andre Birotte, Jr. for Report and Recommendation (Issued) 73 , MOTION to Dismiss Case 62 . 1. The Request for Judicial Notice filed by Defendants Donna Navarro and Carlos Van Natter (&q uot;Moving Defendants") is granted; 2. The Moving Defendants' Motion to Dismiss is granted to the extent it seeks dismissal of the Second Amended Complaint for failure to state a claim; 4. The Second Amended Complaint is dismissed with leave to amend; 5. Within fourteen (14) days of the date of this Order, plaintiff shall do one of the following: (see document for further details). (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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v.

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Case No. 2:19-cv-08897-AB-JC

XAVIER NAILING,

DONNA NAVARRO, et al.,

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Defendants.

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ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
[DOCKET NO. 62]

The Court has conducted the review required by 28 U.S.C. § 636 and accepts

18 the findings, conclusions and recommendation of the Magistrate Judge reflected in
19 the November 18, 2021 Report and Recommendation of United States Magistrate
20 Judge (“Report and Recommendation”).
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IT IS HEREBY ORDERED:
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1.

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The Request for Judicial Notice filed by Defendants Donna Navarro
and Carlos Van Natter (“Moving Defendants”) is granted;

2.

The Moving Defendants’ Motion to Dismiss is granted to the extent it

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seeks dismissal of the Second Amended Complaint for failure to state

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a claim;

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4.

The Second Amended Complaint is dismissed with leave to amend;

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5.

Within fourteen (14) days of the date of this Order, plaintiff shall do

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one of the following:

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(a) file a Third Amended Complaint which cures the pleading defects

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identified in the Report and Recommendation;1

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(b) file a Notice of Dismissal which will result in the voluntary

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dismissal of this action without prejudice; or

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(c) file a Notice of Intent to Stand on Second Amended Complaint,

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indicating plaintiff’s intent to stand on the Second Amended

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Complaint despite the pleading defects described in the Report and

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Recommendation, which may result in the dismissal of this action in

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its entirety based upon such defects.

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Plaintiff is cautioned that his failure timely to file a Third Amended

14 Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Second
15 Amended Complaint may be deemed his admission that amendment is futile,
16 and may result in the dismissal of this action with or without prejudice on the
17 grounds set forth in the Report and Recommendation, on the ground that
18 amendment is futile, for failure diligently to prosecute and/or for failure to
19 comply with this Order.
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Any Third Amended Complaint must: (a) be labeled “Third Amended Complaint”;
(b) be complete in and of itself and not refer in any manner to the original, the First Amended, or
the Second Amended Complaint – i.e., it must include all claims on which plaintiff seeks to
proceed (Local Rule 15-2); (c) contain a “short and plain” statement of each claim for relief
“showing that [plaintiff] is entitled to relief” (Fed. R. Civ. P. 8(a)); (d) make each allegation
“simple, concise and direct” and contain factual allegations in clear short, concise, numbered
paragraphs, each “limited as far as practicable to a single set of circumstances” (Fed. R. Civ. P.
8(d)(1), 10(b)); (e) set forth clearly the sequence of events giving rise to the claim(s) for relief;
(f) reflect which claims are brought against which defendant(s) in which capacity and allege
specifically what each defendant did and how that individual’s conduct specifically violated
plaintiff’s civil rights; and (g) not add defendants or claims that are not related to the claims
asserted in the original, the First Amended Complaint, and the Second Amended Complaint.

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IT IS FURTHER ORDERED that the Clerk serve copies of this Order on

2 plaintiff and counsel for defendants who have appeared in this action.
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IT IS SO ORDERED

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DATED: January 10, 2022

________________________________________
HONORABLE ANDRE BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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