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John Zapata Dba Zapata Collection, Service, An Individual v. Flintco

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 27, 2011

JOHN ZAPATA DBA ZAPATA COLLECTION, SERVICE, AN INDIVIDUAL, PLAINTIFF,
v.
FLINTCO, INC., AN OKLAHOMA CORPORATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Presently before the court is plaintiff's "Motion for Reconsideration Do [sic] To Clerk's Error," which was filed on September 13, 2011 (Dkt. No. 58). Plaintiff now requests that the court reconsider it dismissal of this case for lack of subject matter jurisdiction in light of objections to the magistrate judge's findings and recommendations that are appended to the motion for reconsideration, and which plaintiff contends he timely filed but were not docketed by the Clerk of Court. After reviewing the magistrate judge's findings and recommendations in light of plaintiff's objections, as if those objections were timely filed, the court denies plaintiff's motion for reconsideration.

On August 12, 2011, the magistrate judge assigned to this case filed proposed findings and recommendations, which recommended that this action be dismissed for lack of subject matter jurisdiction (Dkt. No. 54). Those findings and recommendations were served on the parties and contained notice that any objections to the findings and recommendations were to be filed within fourteen days.

No timely objections to the findings and recommendations appeared on the court's docket. On September 7, 2011, after reviewing the magistrate judge's proposed disposition under the appropriate review standards, the court entered an order adopting the findings and recommendations and granting defendants' motion to dismiss for lack of subject matter jurisdiction. (Order, Sept. 7, 2011, Dkt. No. 56.) The court entered judgment that same day and closed this case. (Judgment In A Civ. Case, Dkt. No. 57.)

On September 13, 2011, plaintiff filed the pending motion for reconsideration. Plaintiff contends that he prepared objections to the magistrate judge's findings and recommendations and, on August 24, 2011, sent them to this court for filing via FedEx overnight delivery. Citing to what appears to be a FedEx tracking log, plaintiff contends that his objections should have been timely filed on August 25, 2011, but were not due to the error of a staff member in the Clerk's office.

Whatever transpired in regards to the filing of plaintiff's objections on or around August 25, 2011, the court has again reviewed the magistrate judge's proposed findings and recommendations in consideration of plaintiff's objections, assuming that those objections were timely filed. This court reviews de novo those portions of the proposed findings of fact to which an objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

The court has reviewed the applicable legal standards and, good cause appearing, concludes again that it was appropriate to adopt the proposed findings and recommendations in full. This court lacks subject matter jurisdiction over plaintiff's claims, and this action was properly dismissed. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for reconsideration (Dkt. No. 58) is denied.

IT IS SO ORDERED.

20110927

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