Fulkerson v. Allstate Insurance

Filing 4

ORDERED adjudged, and decreed that the Report and Recommendation (ECF No. 3 ) is accepted and adopted in its entirety. It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 1 ) and motion to s ubmit a complaint (ECF No. 1 -2) is granted. The Clerk of Court is directed to file Plaintiff's Complaint (ECF No. 1 -1). It is further ordered that Plaintiff's Complaint (ECF No. 1 -1) is dismissed with prejudice. The Clerk of Court is directed to close the case and enter judgement accordingly. Signed by Chief Judge Miranda M. Du on 11/17/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:20-cv-00409-MMD-CLB Document 4 Filed 11/17/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HEATH VINCENT FULKERSON,

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Plaintiff,

Case No. 3:20-cv-00409-MMD-CLB
ORDER

v.
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ALLSTATE INSURANCE,
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Defendant.
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Pro se Plaintiff Heath Fulkerson filed an application to proceed in forma pauperis

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(ECF No. 1 (“IFP”)), along with a complaint against Defendant Allstate Insurance

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(“Allstate”) for “property liability and insurance bad faith” (ECF No. 1-1 (“Complaint”)).

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Plaintiff also filed a motion to submit a complaint (ECF No. 1-2 (“Submit Motion”)). Before

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the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge

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Carla L. Baldwin, recommending the Court grant the IFP application and Submit Motion,

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and dismiss Plaintiff’s Complaint with prejudice. (ECF No. 3.) Plaintiff had until October

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27, 2020, to file an objection to the R&R, but has not done so. The Court will adopt the

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R&R in full.

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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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fails to object to a magistrate judge’s recommendation, the Court is not required to

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conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas

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v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114

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(9th Cir. 2003) (emphasis in original) (“De novo review of the magistrate judges’ findings

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and recommendations is required if, but only if, one or both parties file objections to the

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findings and recommendations.”); Fed. R. Civ. P. 72, Advisory Committee Notes (1983)

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Case 3:20-cv-00409-MMD-CLB Document 4 Filed 11/17/20 Page 2 of 2

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(providing that the court “need only satisfy itself that there is no clear error on the face of

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the record in order to accept the recommendation”).

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Because there is no objection, the Court need not conduct de novo review, and is

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satisfied Judge Baldwin did not clearly err. Here, Judge Baldwin recommends dismissing

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the Complaint with prejudice as Plaintiff’s claims in this action are “directly related” and

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“in fact identical” to claims raised in Plaintiff’s other case against Allstate (see Case No.

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3:20-cv-00399-MMD-CLB). (ECF No. 3 at 4.) The Court agrees with Judge Baldwin.

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Plaintiff’s Complaint is duplicative and must be dismissed with prejudice. See Cato v.

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United States, 70 F.3d 1103, n.2 (9th Cir. 1995) (citation omitted) (stating that “[t]here is

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no abuse of discretion where a district court dismisses . . . complaint that merely repeats

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pending or previously litigated claims” and the complaint is dismissed with prejudice).

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Having reviewed the R&R and the record in this case, the Court will adopt the R&R in full.

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It is therefore ordered, adjudged, and decreed that Magistrate Judge Carla L.

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Baldwin’s Report and Recommendation (ECF No. 3) is accepted and adopted in its

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entirety.

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It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF
No. 1) and motion to submit a complaint (ECF No.1-2) is granted.

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The Clerk of Court is directed to file Plaintiff’s Complaint (ECF No. 1-1).

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It is further ordered that Plaintiff’s Complaint (ECF No. 1-1) is dismissed with

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prejudice.

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The Clerk of Court is directed to close the case and enter judgement accordingly.

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DATED THIS 17th Day of November 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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