Cherly K Jones v. Wells Fargo Bank NA, et al.

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cherly K Jones, No. CV-23-01502-PHX-DJH

10 Plaintiff, REPORT AND RECOMMENDATION 11 v. (Under Seal)1

12 Wells Fargo Bank NA, et al.,

13 Defendants. 14 15 TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 16 JUDGE: 17 Pending before the Court is a reference for a Report and Recommendation 18 regarding the merits of Defendant Wells Fargo Bank’s (“Wells Fargo”) Motion to Strike 19 Affidavits of Service (doc. 5), Plaintiff’s Motion to Remand to State Court (doc. 10), 20 Defendant First American Title Company’s (“First American”) Motion to Quash (doc. 21 11), and non-party Inland Empire Service Corporation’s (“Inland Empire”) Motion to 22 Quash (doc. 14). (Doc. 21.) This Court recommends that Defendants’ motions (doc. 5, 23 11) and non-party Inland Empire’s motion (doc. 14) be granted, and that Plaintiff’s 24 motion (doc. 10) be denied. 25 I. Procedural History and Service 26 On June 15, 2023, Plaintiff filed a complaint in Maricopa County Superior Court 27 (“Complaint”) against “Wells Fargo Bank N.A. et al” and “First American Title 28 1 This Report and Recommendation will be filed under seal as explained infra, page 11. 1 Ins[urance] Co[mpany] et al.” (Doc. 1-3 at 3.) Plaintiff alleged she is the “inherited 2 owner of deceases [sic] estate” and that “defendants are pursuing a fraudulent claim as a 3 Deed of Trust to claim a [d]ebt which never occurred by the owners of the real property . 4 . . .” (Id. at 4.) Plaintiff described her injuries as the “fraudulent claim foreclosure to take 5 real property without a cause under either Arizona laws as well as the United States 6 Constitution.” (Id. at 5-6.) She requested a “cease and desist order” and a “temporary 7 restraining order.” (Id. at 6.) In an Application for Preliminary Injunction accompanying 8 the Complaint, Plaintiff sought relief under several legal theories, including fraud, 9 conspiracy, racketeering, and the violation of her Constitutional rights. (Id. at 8-16.)2 Her 10 attached certificates of service indicated she had mailed copies of the Complaint and 11 Application for Preliminary Injunction to Wells Fargo, First American, and “Inland 12 Empire Services Corporation c/o First American Title Insurance Company.” (Id. at 7, 17.) 13 The state court record includes the following documents related to service: 14 • A July 14, 2023, Affidavit of Service by Certified Mail indicating Plaintiff had 15 attempted to mail an Application for Change of Name and Notice of Hearing 16 Regarding Application for Change of Name to Defendant Wells Fargo at an 17 address in Newark, New Jersey. (Id. at 65.) The certified mail receipt indicates it 18 was returned undelivered. (Id. at 66.) 19 • A July 14, 2023, Affidavit of Service by Certified Mail attesting that Plaintiff 20 mailed the same documents to Wells Fargo at an address in Eagan, Minnesota. (Id. 21 at 68.) No signed return receipt was included. (Id. at 69.) 22 • A July 14, 2023, Affidavit of Service by Certified Mail indicating Plaintiff served 23 the same documents by certified mail to “Inland Empire Services Corp. c/o First 24 American Title Ins[urance] Co[mpany] et al.” (Id. at 92.) A signed, dated return 25 receipt was attached. (Id. at 93.)

26 2 The presiding judge, Hon. Melissa Julian, denied Plaintiff’s Application for Preliminary Injunction in an Order dated June 23, 2023. (Id. at 86.) On June 26, 2023, Plaintiff filed 27 another Application for Preliminary Injunction (id. at 87), and this was denied by Judge Pro Tempore, Hon. John Doody, in a Minute Entry Order dated June 28, 2023 (id. at 90- 28 91). 1 • A July 14, 2023, Affidavit of Service by Certified Mail to First American for the 2 same documents. (Id. at 94.) A signed, dated return receipt was attached. (Id. at 3 95.) 4 • A July 15, 2023, summons directed to Inland Empire signed and affixed with a 5 seal by the state clerk of court. (Id. at 81-82.) 6 On July 28, 2023, Defendant Wells Fargo filed with this Court a Notice of 7 Removal (doc. 1) and a Motion to Strike Affidavits of Service (doc. 5), among other 8 documents.3 On July 31, 2023, this Court issued an order stating, in part, Plaintiff’s 9 obligation to serve a copy of the summons and complaint upon each Defendant within 90 10 days of the date of filing and to promptly file proof of service. (Doc. 8 at 1-2.) The Court 11 explained that Plaintiff could file requests for extensions of time to serve these 12 documents prior to the expiration of the 90-day period, but that each request “must set 13 forth the reason why service has not been accomplished and request a specific short 14 period of time in which to accomplish such service.” (Id. at 2.) The Court ordered 15 Plaintiff to file proof of service of the summons and the complaint, or waiver of service, 16 no later than September 12, 2023, and for the Clerk of Court to terminate any unserved 17 Defendant on September 13, 2023. (Id. at 4.) 18 On August 7, 2023, Plaintiff filed a motion to remand this action to state court. 19 (Doc. 10.) In that motion, apart from objecting to the removal of the case, Plaintiff 20 asserted Wells Fargo had been served once it obtained a copy of the complaint through its 21 subsidiaries. (Id. at 3.) On August 21, 2023, Defendant Wells Fargo responded to 22 Plaintiff’s motion. (Doc. 18.) 23 On August 10, 2023, Defendant First American filed a Motion to Quash. (Doc. 24 11.) On August 14, 2023, non-party Inland Empire also filed a Motion to Quash. (Doc. 25 14.) On August 15, 2023, Plaintiff responded to First American and Inland Empire’s 26 motions. (Doc. 16.) On August 22, 2023, First American and Inland Empire filed Replies 27 3 Wells Fargo supplemented its Notice of Removal on August 17, 2023, attaching a 28 Motion to Support Civil Complaint Plaintiff had filed in state court on the same afternoon Wells Fargo filed the Notice of Removal. (Doc. 17.) 1 on their respective motions. (Docs. 19-20.) 2 On August 30, 2023, Plaintiff filed two notices of unsuccessful service upon 3 Defendants by the Maricopa County Sheriff’s Office (doc. 22 at 1-2), and an additional 4 Affidavit of Service by Certified Mail upon Wells Fargo at an address in Fort Mill, South 5 Carolina dated July 14, 2023. (Id. at 3-4.) The certified mail receipt is unsigned, but the 6 page upon which it was scanned includes a copied and pasted signature of unknown 7 origin. (Id. at 4.) Plaintiff’s affidavit states she “received signature confirmation page 8 from post office in person.” (Id. at 3.) This filing also includes copies of the Affidavits of 9 Service Plaintiff previously filed for First American and Inland Empire. (Id. at 5-8, 14.) 10 On August 30, 2023, the Honorable Diane J. Humetewa referred the pending 11 motions (docs. 5, 10, 11, 14) to this Court for a Report and Recommendation. (Doc. 21.) 12 II. Defendant Wells Fargo’s Motion to Strike Affidavits of Service 13 a. The Parties’ Arguments 14 Defendant Wells Fargo argues service was deficient because (1) Plaintiff did not 15 serve Wells Fargo’s statutory agent registered with the Arizona Corporation Commission 16 (“ACC”) pursuant to Ariz. R. Civ. P. 4.1(i) and A.R.S. § 10-3504; (2) Plaintiff did not 17 have leave of court to serve by certified mail pursuant to Ariz. R. Civ. P. 4.1(k); (3) that 18 even if the Superior Court allowed service by certified mail, “Plaintiff’s affidavit [of 19 service] is deficient as it lacks an attached signed return receipt as required by Ariz. R. 20 Civ. P. 4.2(c)(2)(C)[;]” and (4) in any event, Plaintiff never served a summons directed to 21 Wells Fargo as required by Ariz. R. Civ. P. 4. (Doc. 5 at 2.) Wells Fargo also notes that 22 one of Plaintiff’s certified mail receipts clearly states it was returned and not received by 23 Wells Fargo. (Doc. 5 at 1-2.) Plaintiff did not file a separate response to Wells Fargo’s 24 Motion to Strike, but in her motion to Remand to State Court, she states, “[I]t is believed 25 that Wells Fargo has been properly served once they have hard copies of the Civil 26 Complaint obtained from their subsidiary or branches or has personal knowledge from 27 their subsidiary they have been served under such laws.” (Doc. 10 at 3.) 28 b. Legal Standard 1 Although the federal rules govern service after removal, “the question whether 2 service of process was sufficient prior to removal is governed by state law.” Whidbee v. 3 Pierce Cnty., 857 F.3d 1019, 1023 (9th Cir. 2017). Under the Arizona rules, a domestic 4 or foreign corporation “may be served by delivering a copy of the summons and the 5 pleading being served to a partner, an officer, a managing or general agent, or any other 6 agent authorized by appointment or by law to receive service of process and—if the agent 7 is one authorized by statute and the statute so requires—by also mailing a copy of each to 8 the defendant.” Ariz. R. Civ. P. 4.1(i). Effective service must include a summons. Ariz. 9 R. Civ. P. 4.1(b), 4.2(c)(1). Service by certified mail is only proper after the serving party 10 moves for alternative service and demonstrates other methods of service are 11 “impracticable[.]” Ariz. R. Civ. P. 4.1(k)(1); Higgins v. Higgins, No. CV-22-00283- 12 PHX-JJT, 2023 WL 2371851, at *3 (D. Ariz. Mar. 6, 2023). While a party may serve an 13 out-of-state party by “postage-prepaid mail that requires a signed and returned receipt[,]” 14 the party must attach the signed return receipt to the affidavit of service. Ariz. R. Civ. P. 15 4.2(c). 16 c. Discussion 17 The Court recommends granting Defendant Wells Fargo’s Motion to Strike. (Doc. 18 5.) The Court agrees with Wells Fargo that Plaintiff’s attempts at service are invalid for 19 several reasons: (1) she did not include a summons directed to Defendant Wells Fargo, 20 Ariz. R. Civ. P. 4(a)(3); (2) there is no indication service was directed to the registered 21 agent for service of process for Wells Fargo, Ariz. R. Civ. P. 4.1(i); (3) Plaintiff did not 22 have leave of Court to serve Wells Fargo by certified mail, Ariz. R. Civ. P. 4.1(k); and 23 (4), assuming Wells Fargo could be considered an out-of-state party, Plaintiff’s affidavit 24 of service does not include an attached, signed receipt (doc. 22 at 10, 13), Ariz. R. Civ. P. 25 4.2(c)(2)(C). Plaintiff’s August 30, 2023 service filing includes a July 14, 2023 Affidavit 26 of Service by Certified Mail and purports to include a signature from the return receipt, 27 but not the return receipt itself. (Doc. 22 at 4.) Plaintiff’s attempted service of process is 28 deficient in several respects, and the Court recommends granting Wells Fargo’s Motion 1 to Strike the Affidavits of Service. (Doc. 5.) 2 III. Defendant First American’s Motion to Quash 3 a. The Parties’ Arguments 4 Defendant First American argues it is a foreign insurer and, under Arizona law, it 5 must be served through the Director of the Arizona Department of Insurance and 6 Financial Institutions. (Doc. 11.) Defendant notes, “Plaintiff purports to have served First 7 American by certified mail at a location in Texas.” (Doc. 11 at 3.) Plaintiff’s Response 8 mostly expresses her wish that this Court remand her case to the Maricopa County 9 Superior Court, but also asserts Defendants had “first[-h]and knowledge of the Civil 10 Complaint against them and that they did receive said Complaint by signing for it, thus 11 having firsthand knowledge of said case.” (Doc. 16 at 3.) First American replies, in part, 12 that knowledge of the lawsuit alone does not cure defective service, and that Plaintiff’s 13 failure to respond to First American’s substantive claims constitutes waiver. (Doc. 19 at 14 3-4.) 15 b. Legal Standard 16 A “foreign insurer” is one “formed under the laws of another state of the United 17 States.” A.R.S. § 20-204. Service of foreign insurers under Arizona law must be made 18 upon the Director of the Arizona Department of Insurance and Financial Institutions. 19 A.R.S. § 20-221(B). This is the exclusive method of service for foreign insurers in the 20 State of Arizona. Phoenix of Hartford, Inc. v. Harmony Restaurants, Inc., 560 P.2d 441, 21 442 (Ariz. Ct. App. 1977) (“[W]ith respect to foreign insurers, [§ 20-221(B)] provides 22 that service on the director is the only method of service.”) “Knowledge by defendant as 23 to pending lawsuit will not operate to cure a defect in service[.]” Smith v. Smith, 571 P.2d 24 1045, 1048 (Ariz. Ct. App. 1977). 25 c. Discussion 26 Defendant First American, domiciled in Nebraska (doc. 15 at 8), is a foreign 27 insurer under state law. As such, Plaintiff must serve Defendant First American through 28 the Arizona Department of Insurance and Financial Institutions. Phoenix of Hartford, Inc, 1 560 P.2d at 442. Plaintiff here served the Defendants via certified mail in Texas. (Doc. 15 2 at 5-6.) Defendant’s knowledge of the suit alone does not confer jurisdiction. Smith, 571 3 P.2d at 1048. Thus, Plaintiff’s service upon Defendant First American was improper. The 4 Court recommends Defendant First American’s Motion to Quash (doc. 11) be granted. 5 O’Bresley v. Farm Bureau Prop. & Cas. Ins. Co., No. CV-18-02553-PHX-DLR, 2018 6 WL 6061298, at *2 (D. Ariz. Nov. 20, 2018) (“Pursuant to A.R.S. § 20-221(B), Plaintiffs 7 were required to serve Defendant through the [Arizona Department of Insurance].”) 8 IV. Non-Party Inland Empire’s Motion to Quash 9 a. The Parties’ Arguments 10 Non-party Inland Empire argues the title of the complaint must name all parties, 11 and that a summons may only be directed to a party. (Doc. 14 at 2.) Inland Empire argues 12 that serving a complaint on a non-party does not convert a non-party into a party. (Id.) 13 Plaintiff responds that “Defendants” Inland Empire had “first[-h]and knowledge of the 14 Civil Complaint against them and that they did receive said Complaint by signing for it, 15 thus having firsthand knowledge of said case.” (Doc. 16 at 3.) Inland Empire replies, in 16 part, that knowledge of the lawsuit alone does not cure defective service, and that 17 Plaintiff’s failure to respond to Inland Empire’s substantive claims constitutes waiver. 18 (Doc. 20 at 3-4.) 19 b. Legal Standard 20 The title of a complaint must name all parties to the action, Fed. R. Civ. P. 10(a), 21 Ariz. R. Civ. P. 10(a), as must the summons. Fed. R. Civ. P. 4(a)(1)(A); Ariz. R. Civ. P. 22 4(b)(1)(A). Parties not included in the complaint caption are subject to dismissal. 23 Martinez v. Davey, No. 116CV1658AWIMJSPC, 2018 WL 898153, at *5 (E.D. Cal. Feb. 24 15, 2018); see Wilson v. Arizona, No. CV1801663PHXDJHBSB, 2019 WL 11025881, at 25 *4 (D. Ariz. Jan. 3, 2019) (dismissing claims against “unnamed or fictitiously identified” 26 parties). An attempt to serve a non-party does not change its status as a non-party. 27 Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 n. 2 (C.D. Cal. 2006). 28 c. Discussion 1 Plaintiff does not name Inland Empire as a party to this action in the caption to the 2 Complaint (Doc. 1-3 at 3-4), nor does Plaintiff allege specific facts against Inland Empire 3 as to any count (id. at 4, 8). Inland Empire is not a party to this action, and the summons 4 and service directed to Inland Empire should be quashed. This Court recommends Inland 5 Empire’s Motion to Quash (doc. 14) be granted. 6 V. Plaintiff’s Motion to Remand 7 a. The Parties’ Arguments 8 Plaintiff argues she has not consented to removal of the case from state court, that 9 the Maricopa County Superior Court is the proper court to hear the matter and should 10 retain jurisdiction, and, without further explanation, that removal of the case would 11 violate the 14th Amendment to the U.S. Constitution. (Doc. 10 at 1-2.) Defendant Wells 12 Fargo responds that only opposing parties are obligated to file responses to motions and it 13 is not an opposing party because it has not been served. (Doc. 18.) 14 b. Legal Standard 15 Except as otherwise provided by statute, “any civil action brought in a State court 16 of which the district courts of the United States have original jurisdiction, may be 17 removed by the defendant or the defendants, to the district court of the United States for 18 the district and division embracing the place where such action is pending.” 28 U.S.C. § 19 1441(a). Under 28 U.S.C. § 1446(b)(2), “a named defendant’s [30-day] time to remove is 20 triggered by simultaneous service of the summons and complaint, or receipt of the 21 complaint, ‘through service or otherwise,’ after and apart from service of the summons, 22 but not by mere receipt of the complaint unattended by any formal service.” Murphy 23 Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347–48 (1999). Federal courts have 24 original jurisdiction over claims “where the matter in controversy exceeds the sum or 25 value of $75,000, exclusive of interest and costs, and is between—(1) citizens of different 26 States . . . .” 28 U.S.C. § 1332(a)(1). “[A] corporation’s citizenship derives, for diversity 27 jurisdiction purposes, from its State of incorporation and principal place of business.” 28 Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006) (citing 28 U.S.C. § 1332(c)(1)). 1 Further, “[a]ll national banking associations shall, for the purposes of all other actions by 2 or against them, be deemed citizens of the States in which they are respectively located.” 3 28 U.S.C. § 1348. Under section 1348, “one would sensibly ‘locate’ a national bank . . . 4 in the State designated in its articles of association as its main office.” Wachovia Bank, 5 546 U.S. at 318. In a case with several defendants, diversity requirements must be met for 6 each defendant. Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1005 (9th Cir. 2001) (internal 7 quotations and citations omitted). When the amount in controversy is not evident from 8 the complaint, it is the removing party’s burden to prove this requirement by a 9 preponderance of the evidence. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 10 1089, 1090 (9th Cir. 2003).4 The Court must “strictly construe[] the removal statute 11 against removal jurisdiction.” Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988) (citing 12 Takeda v. Nw. Nat’l Life Ins Co., 765 F.2d 815, 818 (9th Cir.1985)). “[F]ederal 13 jurisdiction ‘must be rejected if there is any doubt as to the right of removal in the first 14 instance.’” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (quoting Gaus v. 15 Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). 16 c. Discussion 17 This Court concludes removal is proper. Defendant Wells Fargo removed this 18 action within the timeframe set forth in 28 U.S.C. § 1446(b)(1), as Plaintiff never served 19 a summons. See Murphy Bros., 526 U.S. at 347–48. Diversity of citizenship is complete, 20 as each Defendant is domiciled in a different state than Plaintiff—the Plaintiff in Arizona 21 (doc. 1-3 at 1), Defendant Wells Fargo in South Dakota (doc. 1 at 3), and Defendant First 22 American in Nebraska (Doc. 15 at 8). With respect to the amount in controversy, 23 Plaintiff’s demand for relief encompasses a “cease and desist” order and a “temporary 24 restraining order.” (Doc. 1-3 at 5.) Defendant argues the Complaint nevertheless 25 “requests a permanent injunction in substance though it is phrased as a cease and desist.”

26 4 McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936) (“The authority which the statute vests in the court to enforce the limitations of its jurisdiction 27 precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his 28 allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof.”) 1 (Doc. 1 at 3, ¶ 12.) This Court agrees. 2 Attached to the Complaint is an “Application for Preliminary Injunction,” which 3 seeks, in essence, permanent relief. (Doc. 1-3 at 9 (“Petitioner moves this court to deny 4 and dismiss all said merits as claimed by the respondent be and here afterward [sic] 5 forever . . . .”), 10 (“[P]etitioner request [sic] that respondents document be denied and 6 dismissed with prejudice thus [sic] be barred forevermore.”), 15 (“Petitioner believes that 7 the court should immediately issue their injunction to cease and desist and that it be 8 barred and that any such erroneous petition made by respondent should be immediately 9 denied and dismissed forevermore.”), 16 (“[P]etitioner is asking this court . . . that 10 respondents be forever barred from raising such erroneous issues being without merits 11 and law.”)).5 While the amount of the underlying loan cannot satisfy the amount-in- 12 controversy requirement when only temporary injunctive relief against foreclosure is 13 sought, the amount of the loan can be used to determine the amount in controversy when 14 the plaintiff seeks to permanently enjoin foreclosure or rescind the underlying loan. 15 Larkin v. Bank of Am., N.A., No. EDCV16852PSGSKX, 2016 WL 4180942, at *2 (C.D. 16 Cal. Aug. 4, 2016) (collecting cases); see Mendoza v. Ocwen Loan Servicing, LLC, No. 17 EDCV152281VAPDTBX, 2015 WL 9093559, at *2-3 (C.D. Cal. Dec. 15, 2015) 18 (collecting cases). There is evidence corroborating Defendant’s assertion that the 19 principal sum of the loan at issue is $112,000. (Doc. 1-3 at 59.) Further, on August 17, 20 2023, Defendant Wells Fargo filed a Supplement to its Notice of Removal attaching 21 Plaintiff’s Motion to Support Civil Complaint, which was filed the same afternoon, but 22 after Wells Fargo filed its Notice of Removal. (Doc. 17.) In that document, Plaintiff seeks 23 $1,884,423.64 in damages. (Doc. 17-1 at 2.)6 This Court would find that Defendant has

24 5 The Superior Court denied this Application on June 15, 2023 (id. at 86), but it nevertheless provides insight into the nature of the relief Plaintiff is seeking. 25 6 Although one may challenge the plausibility of these damages, the Court cannot say to a 26 legal certainty that Plaintiff is not entitled to them. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 402 (9th Cir. 1996) (quoting Garza v. Bettcher Indus., Inc., 752 27 F.Supp. 753, 755-56 (E.D.Mich.1990)) (“[W]here the state court complaint itself states damages in an amount sufficient to obtain federal diversity of citizenship jurisdiction, by 28 way of removal, and the defendant does in fact remove the case to federal court, it would make very good sense to require proof to a legal certainty that the plaintiff cannot recover 1 met the $75,000 amount-in-controversy requirement. As such, this Court has original 2 jurisdiction over the matter and recommends denying Plaintiff’s Motion to Remand (doc 3 10). 4 VI. Conclusion and Recommendation 5 Accordingly, 6 IT IS RECOMMENDED that Defendant Wells Fargo’s Motion to Strike 7 Affidavits of Service (doc. 5) be GRANTED; 8 IT IS FURTHER RECOMMENDED that Defendant First American’s Motion 9 to Quash (doc. 11) be GRANTED; 10 IT IS FURTHER RECOMMENDED that non-party Inland Empire’s Motion to 11 Quash (doc. 14) be GRANTED; 12 IT IS FURTHER RECOMMENDED that Plaintiff’s Motion to Remand to State 13 Court (doc. 10) be DENIED. 14 This Report and Recommendation is being filed under seal. The Court’s 15 discussion and analysis of the issues required citation and reference to documents 16 currently under seal. If the parties wish to propose redactions to this Report and 17 Recommendation, they have 14 days to submit a Motion with the proposed redactions for 18 a public filing of this Order and must demonstrate compelling reasons for the proposed 19 redactions. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) 20 (finding that the presumption is to favor disclosure unless a party provides “sufficiently 21 compelling reasons” that override the public policies favoring disclosure). If the Parties 22 do not submit proposed redactions within 14 days of the date of this Order, the Clerk of 23 the Court must unseal this Order without further notice. 24 This recommendation is not an order that is immediately appealable to the Ninth 25 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 26 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 27 parties shall have 14 days from the date of service of a copy of this Report and 28 damages equal to or greater than the jurisdictional amount.”). 1 || Recommendation within which to file specific written objections with the Court. See 28 2\| U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days || within which to file a response to the objections. Failure to timely file objections to the 4|| Magistrate Judge’s Report and Recommendation may result in the acceptance of the || Report and Recommendation by the district court without further review. See United 6|| States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file □□ objections to any factual determinations of the Magistrate Judge will be considered a 8 || waiver of a party’s right to appellate review of the findings of fact in an order of 9|| judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72 11 Dated this 31st day of October, 2023. 12 — 14 United States Magistrate Judge 15 16 CC: 7 Plaintiff, Cherly K. Jones 18 Defense Counsel 19 20 21 22 23 24 25 26 27 28

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