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Scrase v. Grande

United States District Court, D. Nevada

July 23, 2014

JUDITH SCRASE, Plaintiff(s),
v.
PAUL DEL GRANDE, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court are the report and recommendation of Magistrate Judge Ferenbach, who recommended the complaint be dismissed with prejudice. (Doc. # 2). Pro se plaintiff Judith Scrase objected to the recommendation. (Doc. # 3).

A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2(a). Upon the filing of such objections, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); D. Nev. R. IB 3-2(b). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); D. Nev. R. IB 3-2(b).

However, the district court need not conduct a hearing to satisfy the statutory requirement that the district court make a "de novo determination." United States v. Raddatz, 447 U.S. 667, 674 (1980) (observing that there is "nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required determination'").

Magistrate Judge Ferenbach identified four fatal flaws in the complaint: (1) "federal district courts cannot exercise appellate jurisdiction over state court actions"; (2) perjury is not a private cause of action; (3) the court lacks subject-matter jurisdiction because the parties are not diverse; and

(4) the amount-in-controversy requirement of 28 U.S.C. § 1332(a) is not met. (Doc. # 2 at 2-3).

Plaintiff's objection addresses only the final two flaws. (Doc. # 3). First, plaintiff asserts that the underlying controversy is between residents of Nevada and California. Id. Next, the plaintiff proffers a list of alleged monetary damages that, when aggregated, exceeds $75, 000. Id.

Even assuming arguendo that plaintiff's objections have merit, plaintiff fails to object to the first and second bases for dismissal in the magistrate's report. Therefore, the court will adopt the findings in the report and recommendation to which plaintiff did not object. See D. Nev. R. IB 3-2. As a lack of a cause of action is a defect unremediable by an amended complaint, the present complaint will be dismissed with prejudice.

Thus, upon reviewing the recommendation and underlying briefs, this court finds good cause appears to ADOPT the magistrate judge's findings in part, pursuant to the foregoing.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and recommendation of Magistrate Judge Ferenbach (doc. # 2) are ADOPTED in part.

IT IS FURTHER ORDERED that plaintiff Judith Scrase's complaint (docs. # 1-1, 1-2, 1-3) is DISMISSED with prejudice.


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