Jones v. Adams, et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/23/2012 recommending that 5 MOTION for Remand be denied and that 8 MOTION for Sanctions be denied. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/9/2012. (Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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JASON EARL JONES,
CASE No. 1:12-cv-01432-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR REMAND
AND DENYING PLAINTIFF’S MOTION
FOR SANCTIONS
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Plaintiff,
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vs.
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WILLIAM ADAMS, et al.,
(ECF Nos. 5, 8)
FOURTEEN (14) DAY DEADLINE
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Defendants.
_____________________________/
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I.
PROCEDURAL HISTORY
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Plaintiff Jason Earl Jones is a state prisoner proceeding pro se in this action
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originally filed on November 3, 2011 in Kern County Superior Court.1 (ECF No. 1, Ex.
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A.) All Defendants except Defendant Adams have been served. (ECF No. 1 at 2.)
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Defendants Borrero, Gricewich, Phillips, Tarnoff, Wilson and State of California
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(“Defendants”) removed this action from state court based upon federal question
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jurisdiction on August 27, 2012. (Id.) Plaintiff declined Magistrate Judge jurisdiction.
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Jason Earl Jones v. State of California, et al., Kern County Superior Court Case No. S-1500-cv275419-SPC.
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(ECF No. 4.)
Plaintiff filed a motion for remand on September 17, 2012. (ECF No. 5.)
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Defendants filed a statement of non-opposition to Plaintiff’s motion for remand on
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September 21, 2012.2 (ECF No. 7.) Plaintiff filed a motion for sanctions on September
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26, 2012 pursuant to Fed. R. Civ. P 11(b) for Defendants’ improper removal. (ECF No.
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8.) Defendants filed opposition to the motion for sanctions on October 3, 2012. (ECF
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No. 9.) The motions for remand and for sanctions are now before the Court.
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II.
SUMMARY OF COMPLAINT
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Plaintiff’s Complaint alleges causes of action arising at Kern Valley State Prison
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(“KVSP”) for civil rights and state law violations including denial of access to court, due
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process, equal protection, imposition of cruel and unusual punishment, retaliation for
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exercise of constitutional rights, deliberate indifference to medical needs and prison
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conditions, interference with prison mail, transgressions relating to rules violations,
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prison programming, prison records, libel, general negligence and medical negligence.
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(Notice of Removal, Ex. A. at 7, 9-28.)
Named as Defendants are corrections and medical staffers at KVSP, the
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California Department of Corrections and Rehabilitation (“CDCR”) and the State of
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California. (Id. at 3-28.)
Plaintiff seeks monetary, declaratory and injunctive relief. (Id. at 3.)
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III.
ARGUMENT
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A.
Remand
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Plaintiff argues removal was defective in that this action does not arise under §
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1983. The alleged civil rights violations, according to Plaintiff are incidental to state law
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causes of action and arise under the California Constitution rather than the U.S.
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Defendants condition their non-opposition on “the understanding that [Plaintiff] is abandoning
any federal claim s that he m ay have asserted and he is lim iting his lawsuit to state law claim s upon
rem and.” Statem ent of Non-Opposition at 2:1-3.
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Constitution, such that there is no federal question jurisdiction. Defendants are
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“racketeers” and any action against them would be brought under 18 U.S.C. § 1964, a
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statute not alleged in the Complaint.3
Defendants argue Plaintiff’s Complaint sets forth federal claims such that
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removal was proper under 28 U.S.C. 1441(a) based upon alleged 42 U.S.C. § 1983
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violations of the First, Eighth, and Fourteenth Amendments of the U.S. Constitution.
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B.
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Plaintiff claims Defendants’ removal of this action was frivolous, was based upon
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Sanctions
intentional misstatements and was for the purpose of delay such that Rule 11(b)
sanctions are appropriate.
Defendants contend Plaintiff’s motion is conclusory, lacks facts suggesting that
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removal was unreasonable and thus is insufficient to show an improper and frivolous
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filing. G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003).
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They point out that Plaintiff checked the “Civil Rights” box on the first page of his
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Complaint; labels his first, second, fifth, sixth, seventh, eighth, and ninth causes of
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action as “civil rights” claims; and states that Defendants violated his rights to equal
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protection, freedom from cruel and unusual punishment, and retaliated for his exercise
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of constitutional rights. These allegations, according to Defendants reasonably
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implicate rights under the First, Eighth and Fourteenth Amendments of the U.S.
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Constitution that may be litigated under 42 U.S.C. § 1983.
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IV.
ANALYSIS
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A.
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The Complaint in this case facially supports subject matter jurisdiction in federal
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Removal to Federal Court was Proper
court because Plaintiff alleges violation of his federal constitutional rights. 28 U.S.C. §
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Plaintiff requests judicial notice of Jason Earl Jones v. State of California, et al., E.D. Cal. Case
No. 1:11-cv-02104-AW I-DLB (PC), a prisoner civil rights action awaiting screening of alleging racketeering
and civil rights claim s against non-parties arising at KVSP.
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1441. A defendant may remove any civil action brought in state court over which the
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federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a civil action
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that originally could have been brought in federal court may be removed from state to
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federal court. A federal court has original jurisdiction “of all civil actions arising under the
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Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
“The presence or absence of federal-question jurisdiction is governed by the
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well-pleaded complaint rule, which provides that federal jurisdiction exists only when a
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federal question is presented on the face of the plaintiff’s properly pleaded complaint.”
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Caterpillar, Inc., v. Williams, 482 U.S. 386, 392 (1987). “The rule makes the plaintiff the
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master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on
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state law,” id., and existence of federal jurisdiction is determined by the complaint at the
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time of removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.
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1979).
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A case arises under federal law when an essential element of the plaintiff’s
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cause of action involves a right or immunity created by a federal statute. Lapoint v. Mid-
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Atlantic Settlement Services, Inc. 256 F.Supp.2d 1, 3 (D.D.C. 2003) (citing Franchise
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Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., et
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al., 463 U.S. 1, 8-11 (1983)).
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Here, Plaintiff does not directly allege federal constitutional violations in his
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Complaint, but his civil rights causes of action arise under the First, Eighth and
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Fourteenth Amendments of the U.S. Constitution. Plaintiff argues that his claims
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actually arise under the California Constitution. However, he does not cite sections of
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the California Constitution consistent with such claims and he can not in any event bring
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viable claims for damages under what should have been the correctly cited sections.
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Javor v. Taggart, 98 Cal.App.4th 795, 807 (Cal.App. 2 Dist. 2002) (“It is beyond
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question that a plaintiff is not entitled to damages for a violation of the due process
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clause or the equal protection clause of the state Constitution”); see also Giraldo v.
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California Dep’t of Corr. and Rehab., 168 Cal.App.4th 231, 253-57 (Cal.Ct. App. 2008)
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(citing Katzberg v. Regents of the University of California, 29 Cal.4th 300, 329 (2002))
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(there is no private cause of action for damages for violation of the cruel and unusual
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punishments clause of the California Constitution at article 1, section 17); id. at 329
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(2002) (no implied right to seek damages and no available constitutional tort action for
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violation of California Constitution article 1, section 7(a)) (due process); Creighton v.
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City of Livingston, 628 F.Supp.2d 1199, 1218-19 (E.D. Cal. 2009) (no constitutional tort
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action for damages for violation of California Constitution article 1 section 2(a)) (free
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speech).
Such claims may be made in federal court pursuant to 42 U.S.C. § 1983. The
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federal court has subject matter jurisdiction over such claims even if Plaintiff does not
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explicitly cite to the federal statute in his Complaint. “Actions of which the District Courts
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have original jurisdiction are not subject to remand irrespective of whether the plaintiff
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intended to allege a federal or state claim, if a federal cause of action exists.” Lennard
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v. Local 282 Pension Trust Fund, 391 F.Supp. 554, 557 (D.C.N.Y. 1975) (citing Francis
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H. Leggett & Co., v. O’Rourke, 237 F.Supp. 561 (S.D.N.Y. 1964)); see also Johnson v.
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Jumelle, 359 F.Supp. 361, 363 (D.C.N.Y. 1973) (where case properly removed to
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federal court, the jurisdiction of the state court ceased and not even the consent of all
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the parties could divest federal jurisdiction and confer state court jurisdiction absent
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statutory authority); Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. 551,
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555-56 (D.C.N.Y. 1969) (plaintiff’s disclaiming any desire or intention to recover on
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anything other than a purely state cause of action not sufficient cause for remand).
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“Original jurisdiction does not mean exclusive jurisdiction.” Lennard, 391 F.Supp. at
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557.
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Plaintiff’s state law claims do not preclude removal because a federal court may
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exercise supplemental jurisdiction over closely related state law claims. See 28 U.S.C.
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§ 1367(a); Darnell v. Starks, 258 F.Supp. 31, 32 at n.2 (D.C.Or. 1966).
Defendants properly and timely removed the action from state court within 30
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days of receiving notice of the filing of this action.4 28 U.S.C. § 1446(b). Plaintiff's
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motion to remand should be denied.
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B.
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Inasmuch as Defendants’ removal of this action was reasonable, Defendants of
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Sanctions are not warranted
course should not be sanctioned for such removal.
The standard for triggering a sanction under Rule 11 is objective
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unreasonableness, Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000), i.e. whether a
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reasonable attorney, upon an objectively reasonable inquiry into the facts and law,
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would have concluded the position taken was well-founded. Truesdell v. Southern
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California Permanente Medical Group, 209 F.R.D. 169, 174 (C.D. Cal. 2002). A court
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considering Rule 11 sanctions should consider whether a position taken was frivolous,
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legally unreasonable, or without factual foundation, even if not filed in bad faith. Id.
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Here Plaintiff makes the rather bare assertion that removal was frivolous. The
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Court finds the removal proper. Planitiff has identified no sanctionable activity on the
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part of any Defendant. See In re Wal-Mart Employee Litigation, 271 F.Supp.2d 1080,
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1085 (E.D. Wis. 2003) (no Rule 11 sanction where removing party had non-frivolous
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argument for removal); see also Costantini v. Guardian Life Ins. Co. of America, 859
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F.Supp. 89, 91 (S.D.N.Y. 1994) (no Rule 11 sanctions where removal supported by an
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underlying factual predicate).
Plaintiff’s motion for Rule 11(b) sanctions should be denied.
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In cases involving m ultiple defendants, all defendants who have been served m ust consent to
rem oval under 28 U.S.C. § 1441(a). Lapoint, 256 F.Supp.2d at 2.
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V.
FINDINGS AND RECOMMENDATIONS
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Accordingly, the undersigned hereby RECOMMENDS the following:
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1.
Plaintiff's motion for remand (ECF No. 5) be DENIED without prejudice,
and
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2.
Plaintiff's motion for sanctions (ECF No. 8) be DENIED.
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These Findings and Recommendations are submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
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636(b)(1). Within fourteen (14) days of entry of this order, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any
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reply to the objections shall be served and filed within ten (10) days after service of the
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objections. The parties are advised that failure to file objections within the specified
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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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October 23, 2012
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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