Ogeone v. Miyamoto
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION. Signed by JUDGE ALAN C KAY on 8/8/11. (eps) -- Plaintiff's complaint is dismissed without prejudice and without leave to amend CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail August 9, 2011
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Civ. No. 11-00249 ACK-RLP
ORDER ADOPTING MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION
The magistrate judge’s “Findings and Recommendation
That the District Court Dismiss This Action for Lack of
Jurisdiction” (“F & R”) were filed and served on all parties on
July 13, 2011.1/
No party has filed an objection to the F & R,
and the Court cannot find clear error on the face of the record
with respect to these unobjected to findings and recommendation.
See Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003)
(“The court may accept those portions of the Magistrate Judge’s
findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the
In the Order dated July 13, 2011, the magistrate judge
also denied Plaintiff’s Motion to Compel (assuming that
jurisdiction were present), Motion to Change Venue, and Motion
Not to Change Venue. Only the findings and recommendation to
dismiss for lack of subject matter jurisdiction is now before the
Accordingly, IT IS HEREBY ORDERED AND ADJUDGED that,
pursuant to Title 28, United States Code, Section 636(b)(1)(C)
and Local Rule 74.2, the F & R are adopted as the opinion and
order of this Court and Plaintiff’s complaint is dismissed
without prejudice and without leave to amend.2/
In adopting the magistrate judge’s findings and
recommendation that the Fourth Amended Complaint be dismissed
without prejudice and without leave to amend, the Court notes two
First, none of Plaintiff’s four complaints have adequately
alleged federal question jurisdiction. In particular, Plaintiff
filed her third and fourth amended complaints after this Court’s
April 20, 2011 Order to Show Cause, which specifically noted that
Plaintiff’s first and second amended complaints had not properly
asserted federal question jurisdiction (and which also
recommended that Plaintiff obtain counsel if she wished to pursue
the instant matter in federal court, and provided a list of pro
bono attorneys). See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.
1980) (“[A] district court has broad discretion to grant or deny
leave to amend, particularly where the court has already given a
plaintiff one or more opportunities to amend his complaint to
allege federal claims.”); cf. In re Vantive Corp. Sec. Litig.,
283 F.3d 1079, 1098 (9th Cir. 2002) (“In this case, the
plaintiffs had three opportunities to plead their best possible
case. It was therefore not unreasonable for the district court
to conclude that it would be pointless to give the plaintiffs yet
another chance to amend.”), abrogation on other grounds
recognized by South Ferry LP, No. 2 v. Killinger, 542 F.3d 776,
784 (9th Cir. 2008).
Second, the magistrate judge correctly held that Plaintiff’s
dual American and Russian citizenship defeats diversity
jurisdiction. See Hilsenrath v. Nixon Peabody LLP, No. C 07-3193
CW, 2007 WL 2695830, at *1 (N.D. Cal. Sep. 11, 2007) (quoting
Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 711 (9th Cir.
IT IS SO ORDERED
DATED: Honolulu, Hawai‘i, August 8, 2011.
Alan C. Kay
Sr. United States District Judge
Ogeone v. Miyamoto, Civ. No. 11-00249 ACK-RLP: Order Adopting Magistrate
Judge’s Findings and Recommendation.
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