Sifuentes v. Twitter Inc.

Filing 21

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 19 , 17 ; the Court sets aside the default entry on its own motion; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, sdb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID ANGEL SIFUENTES, III,
Plaintiff,
CASE NO. 1:22-cv-1128
v.
HON. ROBERT J. JONKER
TWITTER, INC.,
Defendant.
_______________________________/
ORDER
This is one of ten lawsuits filed by Plaintiff, each of which alleges that the named defendant
or defendants caused a data breach that injured him in some way.1 Plaintiff is proceeding in pro
per and in forma pauperis. He voluntarily dismissed one of his cases (1:22-cv-1200), and in each
of the nine remaining cases, the Magistrate Judge has recommended dismissal2 under 28 U.S.C. §
1915(e)(2).
Plaintiff has filed partial objections to the Report and Recommendation in this case. (ECF
No. 20.) In particular, he does not object to dismissal of his federal claims, but he does object to
the recommended dismissal of his state law claims, which are before the Court only on
supplemental jurisdiction under 28 U.S.C. § 1367. He also seeks permission to file an amended
complaint laying out additional facts and attempting to assert a claim under 15 U.S.C. § 45.

1

The applicable case numbers are 1:22-cv-1128; 1:22-cv-1142; 1:22-cv-1170; 1:22-cv-1194;
1:22-cv-1200; 1:22-cv-1201; 1:22-cv-1203; 1:23-cv-101; 1:23-cv-143; 1:23-cv-187.
2
On January 11, 2023, the Clerk’s office filed an entry of default against Defendant. (ECF No.
16.) The Court sets aside the default entry on its own motion. Plaintiff is proceeding pro se and
thus, as the Magistrate Judge recognized, this action is governed by the provisions of Section
1915. That statute provides that a court “shall dismiss a case at any time” the court determines
that the complaint would not survive screening. 28 U.S.C § 1915(e)(2).

The Court has reviewed the Magistrate Judge’s Report and Recommendation (ECF No.
19) and Plaintiff’s Objections to the Report and Recommendation (ECF No. 20). Under the
Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER, & MARCUS, FEDERAL PRACTICE

AND

PROCEDURE § 3070.2, at 381 (2d ed. 1997).

Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
After de novo review, the Court overrules plaintiff’s objections and adopts the Magistrate
Judge’s Report and Recommendation. The Court also finds that any attempted amendment would
be futile. Accordingly, the Court will enter Judgment dismissing the action in its entirety. The
dismissal of the state law claims is without prejudice and so plaintiff remains free to file those in
state court if he so desires.
The Magistrate Judge accurately identifies the flaws in each of plaintiff’s federal law
claims. And as noted, plaintiff does NOT object to dismissal of the federal claims. He does seek
permission to file an amended complaint that would add some additional facts, and that would
attempt to add a new federal claim under 15 U.S.C. § 45. But these proposed amendments would
be futile as to the federal claims. The flaws the Magistrate Judge identified in the federal claims
were primarily legal in nature, and not based on lack of particular factual assertions. And the claim

plaintiff says he wants to add is under a provision of law that empowers the Federal Trade
Commission to take action preventing unfair methods of competition; it does not authorize a
private lawsuit. Without any viable federal claims, the Court exercises its discretion to decline
supplemental jurisdiction over the state law claims under Section 1367(c)(3), as recommended by
the Magistrate Judge. Contrary to plaintiff’s objections, this has nothing to do with his Article III
standing, or the lack thereof. Declining supplemental jurisdiction over state law claims leaves him
free to pursue those claims in state court if he so desires. For the very reasons the Report and
Recommendation details, this Court agrees with the recommendations.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 19) is APPROVED AND ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint (ECF No. 6) is
DISMISSED for failure to state a claim upon which relief can be granted. Plaintiff’s federal law
claims are DISMISSED WITH PREJUDICE. Plaintiff’s state law claims are DISMISSED
WITHOUT PREJUDICE. This action is terminated.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Default Judgment (ECF No. 17)
is DISMISSED AS MOOT.
The Court discerns no good-faith basis for appeal of this matter.

See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
A separate Judgment shall issue.

Dated:

March 24, 2023

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE