Zapata v. Flintco Inc., et al

Filing 61

ORDER signed by Judge Garland E. Burrell, Jr on 9/27/11 ORDERED that plaintiff's motion for reconsideration 58 is denied. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ZAPATA dba ZAPATA
COLLECTION, SERVICE,
an Individual,

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Plaintiff,

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No. CIV-S-09-3555-GEB-KJN-PS

v.
FLINTCO, INC., an Oklahoma
corporation, et al.,

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Defendants.

ORDER

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Presently before the court is plaintiff’s “Motion for Reconsideration Do [sic] To Clerk’s

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Error,” which was filed on September 13, 2011 (Dkt. No. 58). Plaintiff now requests that the

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court reconsider it dismissal of this case for lack of subject matter jurisdiction in light of

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objections to the magistrate judge’s findings and recommendations that are appended to the

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motion for reconsideration, and which plaintiff contends he timely filed but were not docketed by

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the Clerk of Court. After reviewing the magistrate judge’s findings and recommendations in

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light of plaintiff’s objections, as if those objections were timely filed, the court denies plaintiff’s

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motion for reconsideration.

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On August 12, 2011, the magistrate judge assigned to this case filed proposed findings

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and recommendations, which recommended that this action be dismissed for lack of subject

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matter jurisdiction (Dkt. No. 54). Those findings and recommendations were served on the

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parties and contained notice that any objections to the findings and recommendations were to be

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filed within fourteen days.

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No timely objections to the findings and recommendations appeared on the court’s

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docket. On September 7, 2011, after reviewing the magistrate judge’s proposed disposition

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under the appropriate review standards, the court entered an order adopting the findings and

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recommendations and granting defendants’ motion to dismiss for lack of subject matter

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jurisdiction. (Order, Sept. 7, 2011, Dkt. No. 56.) The court entered judgment that same day and

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closed this case. (Judgment In A Civ. Case, Dkt. No. 57.)

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On September 13, 2011, plaintiff filed the pending motion for reconsideration. Plaintiff

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contends that he prepared objections to the magistrate judge’s findings and recommendations

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and, on August 24, 2011, sent them to this court for filing via FedEx overnight delivery. Citing

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to what appears to be a FedEx tracking log, plaintiff contends that his objections should have

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been timely filed on August 25, 2011, but were not due to the error of a staff member in the

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Clerk’s office.

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Whatever transpired in regards to the filing of plaintiff’s objections on or around August

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25, 2011, the court has again reviewed the magistrate judge’s proposed findings and

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recommendations in consideration of plaintiff’s objections, assuming that those objections were

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timely filed. This court reviews de novo those portions of the proposed findings of fact to which

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an objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore

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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see

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also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed

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findings of fact to which no objection has been made, the court assumes its correctness and

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decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th
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Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi

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Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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The court has reviewed the applicable legal standards and, good cause appearing,

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concludes again that it was appropriate to adopt the proposed findings and recommendations in

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full. This court lacks subject matter jurisdiction over plaintiff’s claims, and this action was

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properly dismissed. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for

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reconsideration (Dkt. No. 58) is denied.

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IT IS SO ORDERED.
Dated: September 27, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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