Zito v. Sullivan

• Court: District Court, D. Nevada
• Decided: February 6, 2025
• Docket: 3:24-cv-00232
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

6 JORDAN ZITO, Case No. 3:24-cv-232-ART-CSD 7 Plaintiff, vs. ORDER ON REPORT & 8 RECOMMENDATION OF RYAN SULLIVAN, et al., MAGISTRATE JUDGE 9 (ECF NO. 18) Defendants. 10 11 Plaintiff Jordan Zito brings this action against several Defendants, 12 referencing the False Statements Accountability Act of 1996 as well as various 13 provisions from the Nevada Revised Statutes (NRS), the Nevada Rules of Civil 14 Procedure, the Nevada Rules of Appellate Procedure and Nevada Revised Code of 15 Judicial Conduct. 16 On September 5, 2024, Magistrate Judge Denney issued an order 17 dismissing Plaintiff’s complaint for failure to state a claim with leave to amend 18 within thirty days. (ECF No. 16.) On October 15, 2024, Judge Denney issued a 19 Report and Recommendation (R&R) recommending that the Court dismiss this 20 action with prejudice because Plaintiff failed to file an amended complaint by the 21 deadline. (ECF No. 18.) Plaintiff filed an objection to the R&R. (ECF No. 19.) 22 On January 27, 2025 Plaintiff filed a notice of appeal. (ECF No. 21.) The 23 Court construes this as an appeal of Judge Denney’s order dismissing Plaintiff’s 24 complaint for failure to state a claim with leave to amend, as this is the only order 25 issued in this case. (See ECF No. 16.) “In general, filing of a notice of appeal 26 confers jurisdiction on the court of appeals and divests the district court of 27 control over those aspects of the case involved in the appeal.” Marrese v. Am. 28 Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). However, Judge 1 Denney’s order dismissing Plaintiff’s complaint with leave to amend was not a 2 final order, and thus is not appealable. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 3 1136 (9th Cir. 1997) (ruling that where a plaintiff who has been given leave to 4 amend does not do so, and the district court issues no final order of dismissal, 5 the Circuit Court lacks jurisdiction). Because Plaintiff’s notice of appeal was 6 premature, this Court retains jurisdiction to rule on this motion. Ruby v. Sec. of 7 U. S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the deficiency in a notice 8 of appeal, by...reference to a non-appealable order, is clear to the district court, 9 it may disregard the purported notice of appeal and proceed with the case, 10 knowing that it has not been deprived of jurisdiction.”); see also Legalization 11 Assistance Project of Los Angeles Cnty. Fedn. of Lab. (AFL-CIO) v. I.N.S., 976 F.2d 12 1198, 1203 n.5 (9th Cir. 1992), cert. granted, judgment vacated on other grounds, 13 I.N.S. v. Legalization Assistance Project of Los Angeles Cnty. Fedn. of Lab., 510 14 U.S. 1007 (1993) (district court retained jurisdiction after notice of appeal was 15 filed as to an order that was not final). 16 I. Review of Reports and Recommendations 17 Under the Federal Magistrates Act, a Court “may accept, reject, or modify, 18 in whole or in part, the findings or recommendations made by [a] magistrate 19 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 20 report and recommendation, then the court is required to “make a de 21 novo determination of those portions of the [report and recommendation] to which 22 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 23 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 24 Arn, 474 U.S. 140, 149 (1985). Because Mr. Zito has filed an objection to the 25 R&R, the Court reviews the R&R de novo. 26 II. Analysis 27 Judge Denney recommends dismissal of Plaintiff’s claims because he failed 28 to timely file an amended complaint. In Judge Denney’s order dismissing the 1 complaint with leave to amend, Plaintiff was warned that “[i]f Plaintiff fails to file 2 an amended complaint within the 30 days, the action may be dismissed.” (ECF 3 No. 16 at 7.) 4 While Plaintiff filed an objection to the Report and Recommendation, he did 5 not explain why he has not filed an amended complaint in this action, nor has he 6 subsequently filed one. As Judge Denney previously dismissed Plaintiff’s 7 complaint for failing to state a claim (ECF No. 16), Plaintiff currently has no 8 complaint before the Court which states a claim upon which relief could be 9 granted. 10 Because Plaintiff has failed to follow the Court’s orders and submit an 11 amended complaint, this action will be dismissed pursuant to LR 11-8. (“The 12 court may, after notice and an opportunity to be heard, impose any and all 13 appropriate sanctions on an attorney or party who…(e) Fails to comply with any 14 order of this court.”). Plaintiff was warned in Judge Denney’s order that failure to 15 file an amended complaint may result in dismissal of his claim. (ECF No. 16 at 16 7.) Despite filing objections to Judge Denney’s R&R recommending dismissal, 17 Plaintiff has not filed an amended complaint or explained his failure to do so. 18 Judge Denney’s R&R recommends dismissal with prejudice because 19 Plaintiff has also failed to state a claim upon which relief can be granted. However, 20 dismissal with prejudice is only appropriate where amendment would be futile or 21 the plaintiff has failed to cure the complaint’s deficiencies despite repeated 22 opportunities. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 23 2012) (citing Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010)). 24 The Court therefore dismisses this action without prejudice. 25 III. Conclusion 26 It is therefore ordered that Plaintiff’s objections to Judge Denney’s Report 27 and Recommendation (ECF No. 19) are OVERRULED. 28 It is therefore ordered that Judge Denney’s Report and Recommendation 1 || (ECF No. 18) is ADOPTED IN PART in accordance with this order. 2 It is further ordered that this action is DISMISSED without prejudice. 3 It is further ordered that Plaintiff's additional motions (ECF Nos. 8, 9, 12, 4 || 24) are DENIED AS MOOT. 5 It is further ordered that the Clerk of the Court shall ENTER JUDGMENT 6 || and CLOSE THIS CASE. 7 8 Dated this 6t day of February, 2025 9 10 An Pod de 1 ANNE R. TRAUM 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28