Scrase v. Del Grande et al

Filing 4

ORDER, Adopting in part, 2 Report and Recommendation. FURTHER ORDERED that plaintiff Judith Scrase's complaint (docs. # 1-1, 1-2, 1-3) is DISMISSED with prejudice. Signed by Judge James C. Mahan on 7/23/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JUDITH SCRASE,

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2:14-CV-296 JCM (VCF)

Plaintiff(s),
v.
PAUL DEL GRANDE, et al.,

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Defendant(s).
ORDER

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Presently before the court are the report and recommendation of Magistrate Judge Ferenbach,

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who recommended the complaint be dismissed with prejudice. (Doc. # 2). Pro se plaintiff Judith

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Scrase objected to the recommendation. (Doc. # 3).

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A party may file specific written objections to the findings and recommendations of a United

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States magistrate judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R.

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IB 3-2(a). Upon the filing of such objections, the district court must make a de novo determination

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of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); D. Nev. R.

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IB 3-2(b). The district court may “accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); D. Nev. R. IB 3-2(b).

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However, the district court need not conduct a hearing to satisfy the statutory requirement

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that the district court make a “de novo determination.” United States v. Raddatz, 447 U.S. 667, 674

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(1980) (observing that there is “nothing in the legislative history of the statute to support the

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contention that the judge is required to rehear the contested testimony in order to carry out the

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James C. Mahan
U.S. District Judge

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statutory command to make the required ‘determination’”).

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Magistrate Judge Ferenbach identified four fatal flaws in the complaint: (1) “federal district

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courts cannot exercise appellate jurisdiction over state court actions”; (2) perjury is not a private

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cause of action; (3) the court lacks subject-matter jurisdiction because the parties are not diverse; and

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(4) the amount-in-controversy requirement of 28 U.S.C. § 1332(a) is not met. (Doc. # 2 at 2-3).

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Plaintiff’s objection addresses only the final two flaws. (Doc. # 3). First, plaintiff asserts

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that the underlying controversy is between residents of Nevada and California. Id. Next, the

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plaintiff proffers a list of alleged monetary damages that, when aggregated, exceeds $75,000. Id.

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Even assuming arguendo that plaintiff’s objections have merit, plaintiff fails to object to the

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first and second bases for dismissal in the magistrate’s report. Therefore, the court will adopt the

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findings in the report and recommendation to which plaintiff did not object. See D. Nev. R. IB 3-2.

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As a lack of a cause of action is a defect unremediable by an amended complaint, the present

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complaint will be dismissed with prejudice.

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Thus, upon reviewing the recommendation and underlying briefs, this court finds good cause
appears to ADOPT the magistrate judge’s findings in part, pursuant to the foregoing.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and

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recommendation of Magistrate Judge Ferenbach (doc. # 2) are ADOPTED in part.
IT IS FURTHER ORDERED that plaintiff Judith Scrase’s complaint (docs. # 1-1, 1-2, 1-3)

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is DISMISSED with prejudice.

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DATED July 23, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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