Nuwintore v. United States of America et al, No. 1:2013cv00967 - Document 51 (E.D. Cal. 2014)

Court Description: ORDER Adopting In Full FINDINGS AND RECOMMENDATIONS Granting Defendant Management & Training Corporation's Motion To Strike Plaintiff's Claim For Punitive Damages (Doc. 28 , 43 ), signed by District Judge Anthony W. Ishii on 4/2/2014. (Fahrney, E)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD NUWINTORE, Plaintiff, 11 12 13 14 15 v. UNITED STATES OF AMERICA and MANAGEMENT & TRAINING CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-00967 - AWI - JLT ORDER ADOPTING IN FULL FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT MANAGEMENT & TRAINING CORPORATION S MOTION TO STRIKE PLAINTIFF„S CLAIM FOR PUNITIVE DAMAGES (Docs. 28, 43) 16 17 Defendant Management & Training Corporation (“MTC”) seeks dismissal of Plaintiff s claim 18 for punitive damages pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. (Doc. 28.) The 19 Magistrate Judge observed that the Ninth Circuit has opined a Rule 12(f) motion is not a proper method 20 by which to strike a claim for punitive damages. (Doc. 43 at 3-4, citing Whittlestone, Inc. v. Handi- 21 Craft Co., 618 F.3d 970, 974 (9th Cir. 2010)). Because MTC argued the factual allegations were 22 insufficient to support a claim for punitive damages, the Magistrate Judge converted the motion to 23 strike to a motion to dismiss under Rule 12(b)(6). (Id., citing Consumer Solutions Reo, LLC v. Hillery, 24 658 F.Supp.2d 1002, 1021 (N.D. Cal. 2009)). Finding Plaintiff failed to allege facts sufficient to 25 support a determination that MTC acted with oppression, fraud, or malice, the Magistrate Judge 26 recommended the motion be granted. (Doc. 43 at 8.) 27 The parties were granted fourteen days from the date of service, or until March 14, 2014 to file 28 objections to the Findings and Recommendations. (Doc. 43 at 8.) Although the parties were “advised 1 1 that failure to file objections within the specified time may waive the right to appeal the District Court s 2 order,” (id. at 8-9, citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)), no objections were filed. In 3 accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School 4 Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the action. 5 6 7 Having carefully reviewed the entire file, the Court finds the Findings and Recommendations are supported by the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED: 1. The Findings and Recommendations filed February 28, 2014 (Doc. 43) are ADOPTED IN FULL; 8 9 2. Defendants motion to strike is GRANTED; 10 3. Plaintiff„s prayer for relief for punitive damages is STRICKEN; and 11 4. Plaintiff is granted leave to amend his complaint within 14 days of the date of service 12 of this Order. 13 14 IT IS SO ORDERED. 15 Dated: April 2, 2014 16 SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2