Scott Hampton v. Insys Therapeutics, et al.

Filing 21

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE NANCY J. KOPPE ECF No. 20 ; denying as moot ECF Nos. 17 Motion to Dismiss and 19 Motion to Remand to State Court; denying without prejudice ECF No. 18 Motion to Sever. It is further ordered that this case is remanded. Clerk directed to close case (certified copy of order and pacer docket sheet mailed to Eighth Judicial District Court, A-18-770455 on 06/12/2018). Signed by Judge Miranda M. Du on 6/12/2018. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

SCOTT HAMPTON,

10
11
12
13

Case No. 2:18-cv-00688-MMD-NJK
Plaintiff,

v.
INSYS THERAPEUTICS, INC., et al.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
NANCY J. KOPPE

Defendants.

14

Before the Court is Magistrate Judge Nancy J. Koppe’s Report and

15

Recommendation (“R&R” or “Recommendation”) (ECF No. 20), recommending that this

16

case be remanded for lack of subject matter jurisdiction. Defendants had until June 7,

17

2018, to file an objection. (Id. at 20.) To date, no objection to the R&R has been filed.

18

Accordingly, the Court adopts the R&R with respect to remand.

19

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

20

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

21

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

22

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

23

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

24

to object, however, the court is not required to conduct “any review at all . . . of any issue

25

that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,

26

the Ninth Circuit has recognized that a district court is not required to review a magistrate

27

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

28

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

1

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

2

objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

3

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

4

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

5

Thus, if there is no objection to a magistrate judge’s recommendation, then the court may

6

accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226

7

(accepting, without review, a magistrate judge’s recommendation to which no objection

8

was filed).

9

As noted, Defendants did not object to the R&R. Nevertheless, this Court finds it

10

appropriate to engage in a de novo review in order to determine whether to adopt the

11

R&R. The Magistrate Judge recommends that this Court reject Defendant Insys

12

Therapeutics, Inc.’s fraudulent misjoinder argument. Upon review of the R&R and filings

13

in this case, the Court agrees with the R&R and will adopt the recommendation to remand

14

for lack of subject matter jurisdiction.

15

It is hereby ordered that the Magistrate Judge’s Report and Recommendation (ECF

16

No. 20) is accepted and adopted. Defendant’s motion to sever (ECF No. 18) is denied

17

without prejudice. The Court declines to address the motion to dismiss (ECF No. 17) in

18

light of this remand order. Plaintiff’s motion to remand (ECF No. 19) is denied as moot.

19

It is further ordered that this case is remanded.

20

The Clerk is directed to close this case.

21

DATED THIS 12th day of June 2018.

22
23

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
2