Pretscher-Johnson v. Aurora Bank FSB et al

Filing 57

Order adopting 47 Report and Recommendation That Case Be Dismissed For Lack of Subject Matter Jurisdiction. Defendants' motions to dismiss 39 , 42 are DENIED as moot. Plaintiff's motion for leave to file a Third Amended Complaint 51 is DENIED. This case is DISMISSED, without prejudice, for lack of subject matter jurisdiction. The Clerk shall close the file. Signed by Hon. Beth Labson Freeman on 5/14/2014.(blflc2, COURT STAFF) (Filed on 5/14/2014)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
MARIANNE PRETSCHER-JOHNSON,

7

Case No. 12-cv-05817-BLF

Plaintiff,
8
v.
9
AURORA BANK FSB, et al.,

10

Defendants.

ORDER ADOPTING REPORT AND
RECOMMENDATION; DISMISSING
CASE FOR LACK OF SUBJECT
MATTER JURISDICTION
Re: Dkt. No. 47

United States District Court
Northern District of California

11
12
This case is a quiet title action originally brought before Magistrate Judge Paul Singh

13
14

Grewal. Before the Court is Judge Grewal’s April 3, 2014 Report and Recommendation that the

15

case be dismissed for lack of subject matter jurisdiction.1 Dkt. No. 47. On April 14, 2014,

16

Plaintiff filed a timely objection to the Magistrate Judge’s Report and Recommendation stating

17

that “Plaintiff objects to the magistrate judge’s recommendation that the case be dismissed and

18

respectfully requests that this Court, in the alternative, transfer this case.” Dkt. No. 52. Also

19

pending before the Court are Defendants’ two motions to dismiss Plaintiff’s Second Amended

20

Complaint pursuant to Fed. R. Civ. P. 12(b)(6), Dkt. Nos. 39, 42, which are fully briefed,2 as well

21

as Plaintiff’s unopposed motion for leave to file a Third Amended Complaint, Dkt. No. 51.
Having reviewed the Report and Recommendation de novo,3 along with the record in this

22
23
1

24
25
26
27
28

Although all parties who have appeared consented to magistrate jurisdiction, two defendants
have yet to appear and, accordingly, have not consented to magistrate jurisdiction. Accordingly,
Judge Grewal ordered that the case be reassigned to a district judge for consideration of his Report
and Recommendation. Dkt. No. 47.
2

At the May 7, 2014 Case Management Conference, counsel for Defendants indicated that they
did not object to the Court’s consideration of Plaintiff’s proposed sur-reply. Plaintiff’s motion for
leave to file a sur-reply, Dkt. No. 49, is therefore granted. See Dkt. No. 56.
3

In this district, any objections to a dispositive report and recommendation must be made as a

1

case, the court finds that the Report and Recommendation is well-founded in fact and in law and

2

therefore adopts the Report and Recommendation.

3

Because subject matter jurisdiction is lacking, the Court need not address the Defendants’

4

motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Accordingly, those motions are DENIED

5

as moot.

6

Finally, after considering Plaintiff’s proposed Third Amended Complaint, the Court finds

7

that Plaintiff’s proposed amendments would not cure the jurisdictional defect identified in Judge

8

Grewal’s Report and Recommendation. Accordingly, Plaintiff’s motion for leave to file a Third

9

Amended Complaint is DENIED.

10

United States District Court
Northern District of California

11

This case is DISMISSED, without prejudice, for lack of subject matter jurisdiction. The
Clerk shall close the file.

12
13

IT IS SO ORDERED.

14
15
16
17

Dated: May 14, 2014
______________________________________
BETH LABSON FREEMAN
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

motion for de novo determination, and must “specifically identify the portions of the Magistrate
Judge's findings, recommendation or report to which objection is made and the reasons and
authority therefor.” Civil L.R. 72–3(a). Plaintiff’s blanket objection to Judge Grewal’s report and
recommendation does not comply with these local rule requirements. However, as Plaintiff is
proceeding pro se, the Court shall review the Report and Recommendation de novo.
2