Paris v. Pollard
- Proceeding
- district
- Area
- civil
- Panel
- Andrew G. Schopler (author)
Analysis
The court reviewed a magistrate judge's report and recommendation to grant the defendant's motion to dismiss after the plaintiff failed to file objections. The court adopted the recommendation, granted the motion to dismiss with leave to amend, and directed the clerk to close the case.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of the Magistrate Judge's Report and Recommendation“So, the Court adopts the magistrate judge’s recommendation” | de novo | agree with court The court correctly applied the standard of review for a Report and Recommendation where no objections were filed. Under 28 U.S.C. § 636(b)(1) and Ninth Circuit precedent, the district court must review the R&R for clear error when no objections are made. The court explicitly cited *United States v. Reyna-Tapia* and stated it reviewed the R&R and found it 'well reasoned and without any clear error.' |
Granting of Defendant's Motion to Dismiss with Leave to Amend“Defendant’s motion to dismiss (ECF 8) is GRANTED with leave to amend.” | unclear | unsure The order does not recite the specific legal standard for the underlying motion to dismiss (e.g., Rule 12(b)(6) plausibility standard) or the specific deficiencies in the complaint. It relies entirely on the magistrate judge's R&R (ECF 13), which is not provided in the text. However, granting leave to amend is a standard procedural remedy when a complaint fails to state a claim but has potential to be cured. Without the R&R, the substantive legal basis for the dismissal cannot be fully verified, but the procedural mechanism of adopting the R&R is sound. |
The order itself: sound — The order is procedurally sound. It correctly identifies the standard of review for a non-objected R&R (clear error) and cites the appropriate Ninth Circuit authority (*Reyna-Tapia*). It properly adopts the R&R and sets clear procedural deadlines and requirements for the plaintiff's amendment. The only gap is that it does not independently articulate the substantive legal basis for the dismissal, relying entirely on the R&R, but this is permissible when adopting an R&R.
Opinion
1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Michael Andrew PARIS, Case No.: 22-cv-0565-AGS-AHG 4 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION AND 5 v. GRANTING MOTION TO DISMISS 6 Marcus POLLARD, (ECF 8) WITH LEAVE TO AMEND 7 Defendant. 8 9 On July 27, 2023, the magistrate judge issued a report and recommendation, urging 10 this Court to grant defendant’s motion to dismiss with leave to amend and giving plaintiff 11 Michael Andrew Paris 14 days to object. (See ECF 13, at 12–13.) To date, Paris has not 12 objected. The district judge “must review the magistrate judge’s findings and 13 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 14 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citing 18 U.S.C. § 636(b)). Having reviewed 15 the report and recommendation, the Court finds it well reasoned and without any clear 16 error. So, the Court adopts the magistrate judge’s recommendation: 17 1. Defendant’s motion to dismiss (ECF 8) is GRANTED with leave to amend. The 18 Clerk is directed to close this case. 19 2. By September 29, 2023, plaintiff may AMEND his complaint to address the 20 issues identified in the magistrate judge’s report and recommendation. Plaintiff 21 may only amend his complaint to address those issues. Should a timely first 22 amended complaint be filed, the Clerk is directed to reopen this case. 23 3. Plaintiff’s first amended complaint must be complete, without reference to his 24 original pleading. Defendants not named and any claims not re-alleged in the 25 amended complaint will be considered waived. See Civ.L.R. 15.1. 26 27 28 1 4. The Clerk is directed to serve a copy of the magistrate judge’s report and 2 recommendation (ECF 13) along with this Order. 3 Dated: August 29, 2023 5 Andrew G. Schopler United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28