Borenstein v. Emerald Suites

Filing 6

ORDER Adopting 4 Report and Recommendation. FURTHER ORDERED that 5 Plaintiff's Complaint is DISMISSED without prejudice. FURTHER ORDERED that plaintiff has thirty (30) days from the date of this order to file an amended complaint. Failure to file an amended complaint (or request an extension for leave to file) within thirty (30) days will result in dismissal of the action. FURTHER ORDERED that 3 Motion to Stay Eviction is DENIED without prejudice. Signed by Judge James C. Mahan on 8/31/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

BRIAN BORENSTEIN,

8

Plaintiff(s),

9
10

Case No. 2:17-CV-1341 JCM (CWH)
ORDER

v.
EMERALD SUITES,

11

Defendant(s).

12
13

Presently before the court is Magistrate Judge Hoffman’s report and recommendation

14

(“R&R”). (ECF No. 4). No objections have been filed, and the deadline for filing objections has

15

since passed.

16

I.

Facts

17

On May 11, 2017, pro se plaintiff Brian Borenstein filed an application to proceed in forma

18

pauperis along with numerous case-initiating documents. (ECF Nos. 1, 2). On May 15, plaintiff

19

filed a motion to stay eviction. (ECF No. 3). On May 17, 2017, Magistrate Judge Hoffman issued

20

the instant R&R. (ECF No. 4).

21

II.

Legal Standard

22

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

23

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

24

to a magistrate judge’s report and recommendation, then the court is required to “make a de novo

25

determination of those portions of the [report and recommendation] to which objection is made.”

26

28 U.S.C. § 636(b)(1).

27

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

28

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

1

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

2

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

3

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

4

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

5

objections were made).
Nevertheless, this court finds it appropriate to engage in a de novo review to determine

6
7

whether to adopt the recommendation of the magistrate judge.

8

A court may dismiss a complaint for “failure to state a claim upon which relief can be

9

granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

10

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell

11

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

12

In the R&R, Magistrate Judge Hoffman noted that plaintiff has not filed a formal

13

complaint. (ECF No. 4). Magistrate Judge Hoffman found that plaintiff’s filings, even when

14

liberally construed, do not state a cause of action. Id. Further, Magistrate Judge Hoffman noted

15

that plaintiff’s filings do not explain why a federal court would have jurisdiction over the action.

16

Id.

17

Upon reviewing the recommendation and underlying briefs, the court finds that good cause

18

appears to adopt the magistrate judge’s findings. The filings do not offer any detail regarding the

19

eviction or why it was unlawful. (See ECF No. 5). Further, the filings do not demonstrate why

20

the court possesses jurisdiction over the action. See id. The plaintiff has thus failed to state a claim

21

upon which relief may be granted. See Twombly, 550 U.S. at 555.

22

Accordingly,

23

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge

24

Hoffman’s report and recommendation (ECF No. 4) be, and the same hereby is, ADOPTED in its

25

entirety.

26
27

IT IS FURTHER ORDERED that plaintiff’s complaint (ECF No. 5) be, and the same
hereby is, DISMISSED without prejudice.

28
James C. Mahan
U.S. District Judge

-2-

1

IT IS FURTHER ORDERED that plaintiff has thirty (30) days from the date of this order

2

to file an amended complaint. Failure to file an amended complaint (or request an extension for

3

leave to file) within thirty (30) days will result in dismissal of the action.

4
5
6
7
8

IT IS FURTHER ORDERED that plaintiff’s motion to stay eviction (ECF No. 3) be, and
the same hereby is, DENIED without prejudice.
DATED August 31, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-