Lamont v. Petrucelli

Filing 12

ORDER ADOPTING 10 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE; AND DISMISSING ACTION WITH PREJUDICE. Signed by Judge Beth Labson Freeman on 7/12/2018.(blflc1S, COURT STAFF) (Filed on 7/12/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
8

P. STEPHEN LAMONT,
Plaintiff,

9
10

United States District Court
Northern District of California

11

Case No. 18-cv-02790-BLF

v.
JOHN PETRUCELLI,
Defendant.

12

ORDER ADOPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE; AND
DISMISSING ACTION WITH
PREJUDICE
[Re: ECF 10]

13
14
15

Plaintiff P. Stephen Lamont, proceeding pro se, filed the complaint in this action on May

16

10, 2018, along with an application to proceed in forma pauperis (“IFP”) and a motion for

17

permission to use the Court’s Electronic Case Filing (“ECF”) system as an e-filer. Magistrate

18

Judge Nathanael M. Cousins, to whom the case initially was assigned, denied the IFP application

19

without prejudice, granted the motion for permission to proceed as an e-filer, and dismissed the

20

complaint with leave to amend for lack of personal jurisdiction over Defendant John Petrucelli.

21

Plaintiff thereafter filed the operative first amended complaint (“FAC”) and a renewed IFP

22

application. On June 27, 2018, Judge Cousins granted Plaintiff’s renewed IFP application,

23

directed that the case be reassigned to a district judge, and issued a Report and Recommendation

24

(“R&R”) that the case be dismissed with prejudice for lack of personal jurisdiction over

25

Defendant.

26

Plaintiff has not filed an objection to the R&R and the time to object has expired. See Fed.

27

R. Civ. P. 72(b)(2) (deadline to object is 14 days after service of R&R). The Court finds Judge

28

Cousins’ R&R to be well-reasoned and correct in every respect, and ADOPTS the R&R in its

1

entirety. In particular, the Court agrees with Judge Cousins’ conclusion that this Court lacks

2

personal jurisdiction over Defendant because it appears on the face of the FAC that Defendant is a

3

citizen of New York and that all events giving rise to this lawsuit occurred in New York. See

4

FAC ¶¶ 6-17, ECF 7. Judge Cousins identified that defect in his screening order dismissing the

5

complaint, and he granted Plaintiff an opportunity to amend to demonstrate the existence of

6

personal jurisdiction over Defendant. Plaintiff also had an opportunity to address the issue of

7

personal jurisdiction by filing objections to Judge Cousins’ R&R. Because Plaintiff has failed to

8

demonstrate the existence of personal jurisdiction over Defendant despite being given two

9

opportunities to do so, and because it appears that further amendment would be futile, the Court
agrees with Judge Cousins that it is appropriate to dismiss the case with prejudice at this time. See

11
United States District Court
Northern District of California

10

Foman v. Davis, 371 U.S. 178, 182 (1962).

12

Accordingly, IT IS HEREBY ORDERED that the case is DISMISSED WITH

13

PREJUDICE for lack of personal jurisdiction over Defendant. The Clerk shall close the file.

14
15
16
17

Dated: July 12, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
2