Clemons v. Clemons

Filing 9

ORDER ADOPTING 7 REPORT AND RECOMMENDATION TO DISMISS CASE FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM. Signed by Judge Beth Labson Freeman on 12/12/2017. (blflc2S, COURT STAFF) (Filed on 12/12/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MICHAEL CLEMONS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-05449-BLF

v.
EMA HILDA CLEMONS,

ORDER ADOPTING REPORT AND
RECOMMENDATION TO DISMISS
CASE FOR LACK OF SUBJECT
MATTER JURISDICTION

Defendant.

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Plaintiff Michael Clemons has filed an amended complaint in this action against Ema

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Hilda Clemons. See ECF 6. On November 22, 2017, Magistrate Judge Nathanael M. Cousins, to

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whom the case originally was assigned, issued a Report and Recommendation Under 28 U.S.C.

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§ 1915 to Dismiss Amended Complaint. See ECF 7 (“R&R”). Judge Cousins recommends that

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this Court dismiss Mr. Clemons’ amended complaint for lack of federal subject matter jurisdiction,

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without prejudice to refiling in state court. Id. at 1.

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When a magistrate judge issues an R&R regarding a case-dispositive matter, a party may

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file “specific written objections” to the R&R within 14 days after being served with the R&R. Fed.

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R. Civ. P. 72(b)(2). If the party is served with the R&R by mail, that 14-day period is extended by

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3 days. See Fed. R. Civ. P. 6(d) (“When a party may or must act within a specified time after

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being served and service is made under Rule 5(b)(2)(C) (mail) . . . , 3 days are added after the

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period would otherwise expire.”). “The district judge must determine de novo any part of the

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magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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“When no timely objection is filed, the court need only satisfy itself that there is no clear error on

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the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72, Adv. Comm.

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Notes to 1983 Amend.; see also Grasdalen v. Shartle, No. CV 15-0299-TUC-JGZ (BGM), 2016

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WL 4138274, at *1 (D. Ariz. Aug. 4, 2016) (district court reviews for clear error where no

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objections are filed); Evony, LLC v. Aeria Games & Entm’t, Inc., No. C 11-0141 SBA, 2014 WL

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12658953, at *1 (N.D. Cal. June 12, 2014) (same).

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Mr. Clemons was served with the R&R by mail on November 22, 2017. Certificate of

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Service, ECF 7-1. He therefore had until December 11, 2017 to file objections. No objections

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have been filed. Accordingly, this Court reviews Judge Cousins’ R&R only for clear error. This

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Court finds no error in Judge Cousins’ determination that this Court lacks subject matter

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jurisdiction over the action and that Mr. Clemons has failed to state a claim under Federal Rule of

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Civil Procedure 8.

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In particular, Mr. Clemons has failed to allege a federal claim in his amended complaint,

United States District Court
Northern District of California

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which only “appears to assert some type of theft at an unspecified time.” See R&R at 3. As for

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diversity jurisdiction, although the amount in controversy alleged to have been stolen is quite high

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($26,000,000), it is unaccompanied by any supporting factual allegations. Moreover, the P.O. Box

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address that Mr. Clemons provides for the Defendant indicates that she is also a citizen of

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California despite Mr. Clemons’ statement that Defendant’s diverse citizenship “is not in

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question.” ECF 6 ¶¶ 3-5. Even after Judge Cousins identified deficiencies in Mr. Clemons’

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original complaint (ECF 5), Mr. Clemons remains unable to allege facts showing that this Court

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has subject matter jurisdiction over his claim.

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For the foregoing reasons, the Court finds Judge Cousins’ R&R legally correct, well-

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reasoned, and thorough, and ADOPTS it in its entirety. The Court DISMISSES this case without

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prejudice to Mr. Clemons refiling his claims in state court. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: December 12, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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