Middleton v. Omely Telecom Corp a/k/a Pro Tax and Accounting

Filing 29

REPORT AND RECOMMENDATION that Sam Bateman's 28 Motion to Dismiss be Denied as moot. Objections to R&R due by 10/25/2017. Signed by Magistrate Judge George Foley, Jr on 10/11/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERVIN MIDDLETON,
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Plaintiff,
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vs.
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OMELY TELECOM CORP.,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-01369-APG-GWF
REPORT & RECOMMENDATION

This matter is before the Court on Sam Bateman’s First Motion to Dismiss (ECF No. 28),
filed on October 10, 2017.

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On June 16, 2016, Plaintiff filed his Application for Leave to Proceed In Forma Pauperis.

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ECF No. 1. The Court granted Plaintiff’s Application and screened Plaintiff’s complaint pursuant

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to 28 U.S.C. § 1915(a). ECF No. 2. The Court found that Plaintiff sufficiently pled a claim under

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the Telephone Consumer Protection Act against Defendant Omely Telecom Corp and instructed the

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Clerk of the Court to file the complaint, issue summons to Defendant, and deliver the summons to

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the U.S. Marshal for service. On September 5, 2017, Plaintiff filed his first amended complaint

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without leave of court. He added new parties including Sam Bateman as a defendant in this matter.

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On September 19, 2017, the Court instructed the Clerk of Court to strike Plaintiff’s first amended

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complaint and corresponding summons be stricken for failure to comply with Fed. R. Civ. P. 15(a)

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and that all parties other than Plaintiff Ervin Middleton and Defendany Omely Telecom Corp. be

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removed from the CM/ECF service list.

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Mr. Bateman requests that the Court dismiss him as a defendant from Plaintiff’s complaint
based upon absolute judicial immunity. Plaintiff’s first amended complaint naming Mr. Bateman

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as a defendant has been stricken for failure to comply with Rule 15(a). Mr. Bateman has been

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terminated from this matter and is not a defendant. See ECF No. 19. Accordingly,

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IT IS RECOMMENDED that Sam Bateman’s First Motion to Dismiss (ECF No. 28) be
denied as moot.
NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to

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file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit

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has also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED this 11th day of October, 2017.

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GEORGE FOLEY, JR.
United States Magistrate Judge

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