Katayama v. Horita et al

Filing 4

ORDER that the Report and Recommendation of Magistrate Judge Peggy A. Leen (ECF No. 3 ) is accepted and adopted in its entirety; Plaintiff's application to proceed in form pauperis (ECF No. 1 ) is denied; the Complaint is dismissed without prejudice; Clerk directed to close this case. Signed by Judge Miranda M. Du on 3/8/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID KATAYAMA,

Case No. 2:17-cv-03063-MMD-PAL
Plaintiff,

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v.
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KUNIHIKO HORITA, et al.,
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ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
PEGGY A. LEEN

Defendants.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Peggy A. Leen (ECF No. 3) (“R&R”) relating to Plaintiff David Katayama’s

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application to proceed in forma pauperis (ECF No. 1) and pro se Complaint (ECF No. 1-

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1). Plaintiff had until March 6, 2019, to file an objection. (ECF No. 3.) To date, no

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objection to the R&R has been filed.

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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 judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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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.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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

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determine whether to adopt Magistrate Judge Leen’s R&R. Judge Leen recommended

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denying Plaintiff’s application to proceed in forma pauperis because the Court lacks

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personal jurisdiction or venue over his claims. (ECF No. 3 at 2.) Judge Leen further

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recommended dismissing the Complaint without prejudice because the Complaint does

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not establish that the Court has personal jurisdiction over Defendants or that the District

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of Nevada is the proper venue for Plaintiff’s claims. (Id. at 4.) Upon reviewing the R&R

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and proposed complaint, this Court finds good cause to accept and adopt the Magistrate

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Judge’s R&R in full.

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It is therefore ordered, adjudged, and decreed that the Report and

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Recommendation of Magistrate Judge Peggy A. Leen (ECF No. 3) is accepted and

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adopted in its entirety.

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It is ordered that Plaintiff’s application to proceed in form pauperis (ECF No. 1) is
denied.

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It is further ordered that the Complaint is dismissed without prejudice.

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The Clerk is directed to close this case.

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DATED THIS 8th day of March 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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