Gettings v. Link et al

Filing 5

ORDER Adopting 3 Report and Recommendation. FURTHER ORDERED that plaintiff Jimmy Gettings' complaint (doc. # 1-1) be, and the same hereby is, DISMISSED, without prejudice to refiling in a district in which venue is proper. FURTHER ORDERED t hat 2 Motion for filing lis pendens is DENIED as moot. FURTHER ORDERED that 4 Motion to Withdraw complaint is DENIED as moot. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 4/28/16. (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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***

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JIMMY GETTINGS,

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Case No. 2:15-CV-2371 JCM (NJK)
Plaintiff(s),

ORDER

v.
CHRIS LINK, et al.,

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Defendant(s).

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Presently before the court are the report and recommendation of Magistrate Judge Koppe.

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(Doc. # 3). No objections have been filed, and the time for doing so has passed. Also before the

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court are plaintiff Jimmy Gettings’ motion for filing lis pendens and motion to withdraw the
complaint. (Doc. ## 2 and 4).
Plaintiff’s complaint alleges a claim under California state law on the basis of diversity
jurisdiction. (See doc. # 1-1). Plaintiff alleges that the events which give rise to his claim occurred
in California, and that both defendants reside in California. (Id.) Judge Koppe recommends the

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action be dismissed with prejudice because Nevada is not a proper venue for the action and

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amendment would be futile. See 28 U.S.C. § 1406(a); (doc. # 3 at 23). Plaintiff does not object

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to the recommendation. (See doc. # 4). In fact, he filed a motion to withdraw his complaint upon

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entry of Judge Koppe’s recommendation. (Doc. # 4).

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This court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects

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to a magistrate judge’s report and recommendation, then the court is required to “make a de novo
determination of those portions of the [report and recommendation] to which objection is made.”
28 U.S.C. § 636(b)(1).

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Where a party fails to object, however, the court is not required to conduct “any review at

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all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

James C. Mahan
U.S. District Judge

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(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)
(reading the Ninth Circuit’s decision in Reyna–Tapia as adopting the view that district courts are
not required to review “any issue that is not the subject of an objection.”). Thus, if there is no

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objection to a magistrate judge’s recommendation, then this court may accept the recommendation

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without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a

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magistrate judge’s recommendation to which no objection was filed).

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Nevertheless, this court finds it appropriate to engage in a de novo review to determine

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whether to adopt the recommendation of the magistrate judge.

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recommendation and the record in this matter, this court finds that good cause appears to adopt

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Judge Koppe’s findings and recommendation in full.

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Upon reviewing the

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge
Koppe’s report and recommendation (doc. # 3) be, and the same hereby are, ADOPTED in their
entirety.

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IT IS FURTHER ORDERED that plaintiff Jimmy Gettings’ complaint (doc. # 1-1) be, and

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the same hereby is, DISMISSED, without prejudice to refiling in a district in which venue is

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proper.

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IT IS FURTHER ORDERED that plaintiff Jimmy Gettings’ motion for filing lis pendens
(doc. # 2) be, and the same hereby is, DENIED as moot.
IT IS FURTHER ORDERED that plaintiff Jimmy Gettings’ motion to withdraw complaint
(doc. # 4) be, and the same hereby is, DENIED as moot.
The clerk shall enter judgment accordingly and close the case.
DATED April 28, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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