Anaeme v. United States of America et al

Filing 6

ORDER Accepting in full, 4 Report and Recommendation. FURTHER ORDERED, if Plaintiff is able to cure the defects identified in Magistrate Judge Ferenbach's Report and Recommendation, Plaintiff shall file an amended complaint by August 19, 2013. Failure to file an amended complaint by that date will result in DISMISSAL of Plaintiff's Complaint with prejudice. Signed by Judge Gloria M. Navarro on 7/16/13. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CHIBUEZE C. ANAEME, 4 5 6 7 8 ) ) Plaintiff, ) vs. ) ) UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ) Case No.: 2:12-cv-01038-GMN-VCF ORDER 9 Pending before the Court is the Report and Recommendation of United States Magistrate 10 11 Judge Cam Ferenbach. (ECF No. 4.) In response, Plaintiff Chibueze C. Anaeme (“Plaintiff”) 12 filed a Motion for Reconsideration. (ECF No. 5.) For the reasons discussed below, the Court 13 will accept in full Judge Ferenbach’s Report and Recommendation to the extent that it is not 14 inconsistent with this Order. 15 I. BACKGROUND Plaintiff instituted the instant action on June 19, 2012 when he filed his 16 17 Motion/Application for Leave to Proceed in forma pauperis. (ECF No. 1.) In Plaintiff’s 18 Complaint, he requests “damages under causes of action within meaning of but not limited to 19 FTCA 28 U.S.C. Sections 1346, 1402, 2401, 2402, 2671 et seq. . . ..” (Compl. 31:3-5, ECF No. 20 1-1.) 21 Although Plaintiff’s Complaint is difficult to follow, it appears that Plaintiff’s grievance 22 arises from the alleged actions of a law firm in New Mexico. Specifically, Plaintiff alleges that 23 certain attorneys in Albuquerque, New Mexico agreed to represent Plaintiff in an employment 24 discrimination matter. (Compl. ¶ 53.) Plaintiff further alleges that at some point after the 25 termination of that attorney-client relationship, these attorneys created duplicates of Plaintiff’s Page 1 of 3 1 case file without Plaintiff’s authorization. (Compl. ¶¶ 57-58.) 2 As a result of these alleged events, Plaintiff filed the instant Complaint alleging four 3 causes of action: (1) negligence under the Federal Tort Claims Act (“FTCA”); (2) conspiracy 4 under the FTCA; (3) disparate treatment under the FTCA; and (4) intentional infliction of 5 emotional distress under the FTCA. (Compl. ¶¶ 88-114, ECF No. 1-1.) 6 This action was referred to Judge Ferenbach pursuant to 28 U.S.C. § 636(b)(1)(B) and 7 District of Nevada Local Rule IB 1-4. On July 19, 2012, Judge Ferenbach recommended that 8 this Court enter an Order dismissing Plaintiff’s Complaint without prejudice and permitting 9 Plaintiff to file an amended complaint within thirty-three (33) days from the date the clerk mails 10 Plaintiff this Order. Specifically, Judge Ferenbach recommended that the Court dismiss 11 Plaintiff’s complaint for improper venue, for lack of jurisdiction, and for failure to state a claim. 12 (Report & Recommendation, ECF No. 4.) In response, more than two months later, Plaintiff 13 filed a document styled as a Motion for Reconsideration, which the Court construes as an 14 objection to Judge Ferenbach’s Report & Recommendation. (Mot. for Reconsideration, ECF No. 15 5 (requesting reconsideration of the July 19, 2012 order).) In Plaintiff’s objection, he states only 16 that “the complaint as filed by plaintiff pro se in aforerecited cause is proper” and that “[t]he 17 aforerecited cause of action was thoroughly and/or extensively investigated by plaintiff over 18 several years prior to initiation of the corresponding litigation.” (Mot. to Reconsider 4:5-7.) 19 II. 20 DISCUSSION A party may file specific written objections to the findings and recommendations of a 21 United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 22 D. Nev. R. IB 3-2.1 Upon the filing of such objections, the Court must make a de novo 23 24 Rule IB3-2(a) also provides that such objections must be filed “within fourteen (14) days from the date of service of the magistrate judge’s ruling.” Plaintiff’s objection was filed more than two months after the date of the magistrate judge’s ruling. Nevertheless, in light of Plaintiff’s pro se status, the Court will still consider Plaintiff’s untimely filed objection. 1 25 Page 2 of 3 1 determination of those portions of the Report to which objections are made. Id. The Court may 2 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 3 Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b). 4 In this case, having reviewed Magistrate Judge Ferenbach’s Report and Recommendation 5 and conducted a de novo review, the Court agrees that Plaintiff’s Complaint should be dismissed 6 without prejudice. 7 III. 8 9 10 CONCLUSION IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 4) be ACCEPTED in full, to the extent that it is not inconsistent with this Order. IT IS FURTHER ORDERED, if Plaintiff is able to cure the defects identified in 11 Magistrate Judge Ferenbach’s Report and Recommendation, Plaintiff shall file an amended 12 complaint by August 19, 2013. Failure to file an amended complaint by that date will result in 13 DISMISSAL of Plaintiff’s Complaint with prejudice. 14 DATED this 16th day of July, 2013. 15 16 ______________________________ Gloria M. Navarro United States District Judge 17 18 19 20 21 22 23 24 25 Page 3 of 3

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