United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
26, 2019, Magistrate Judge John V. Acosta issued his Findings
and Recommendation (F&R) , recommending that I
dismiss Plaintiff Roosevelt Ross III's Second Amended
Complaint  under 28 U.S.C. § 1915 for lack of
subject matter jurisdiction. Neither party objected. After
Judge Acosta issued his F&R, Mr. Ross filed a Third
Amended Complaint . For the reasons stated below, Judge
Acosta's F&R is adopted in full and the Third Amended
Complaint  is DISMISSED.
Standard of Review
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Ross's Third Amended Complaint is the second iteration of
repleading on the heels of a dismissal in this case. On March
21, 2019, Judge Acosta issued an F&R  recommending
that I dismiss Mr. Ross's initial Complaint  under 28
U.S.C. § 1915 for lack of subject matter jurisdiction.
Rather than filing an objection, Mr. Ross filed his First
Amended Complaint . In my June 4, 2019, Opinion and
Order, I adopted Judge Acosta's F&R in full,
dismissed the First Amended Complaint for lack of subject
matter jurisdiction, and granted Mr. Ross leave to amend.
Opinion and Order  at 3. Mr. Ross then filed his Second
Amended Complaint , which contained the same
jurisdictional defect-a lack of complete diversity-present in
the Complaint and First Amended Complaint. F&R  at
10. Therefore, in the latest F&R, Judge Acosta
recommended that I dismiss Mr. Ross's Second Amended
Complaint. F&R  at 11. Judge Acosta also recommended
one additional opportunity to amend because Mr. Ross had
attempted to plead federal question jurisdiction under 42
U.S.C. § 1981 but failed to allege that Defendants
engaged in intentional race discrimination. F&R  at
10-11. Shortly after Judge Acosta issued his F&R, Mr.
Ross filed his Third Amended Complaint.
Second Amended Complaint
with Judge Acosta's finding that Mr. Ross's Second
Amended Complaint suffers from the same jurisdictional defect
present in the first two complaints: Mr. Ross is a citizen of
Oregon and alleged that at least one Defendant is also a
citizen of Oregon. In addition, I agree with Judge
Acosta's finding that Mr. Ross failed to adequately state
a claim under 42 U.S.C. § 1981, as the Second Amended
Complaint makes no allegation that Defendants engaged in race
discrimination. Finally, Judge Acosta correctly found that
Mr. Ross's constitutional allegations fail to establish
federal question jurisdiction because they do not state a
claim for relief. See F&R  at 7 (citing
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d
704, 705 (9th Cir. 1992)). For these reasons, in addition to
those stated in my previous Opinion and Order , I adopt
Judge Acosta's recommendation-Mr. Ross's Second
Amended Complaint is DISMISSED.
Third Amended Complaint
the previous versions of his Complaint, Mr. Ross's Third
Amended Complaint seeks to "enforce the accord and
satisfaction" allegedly established by Mr. Ross's
tender of a $497.39 car payment via a money order on which he
had written "payment in full satisfaction of all
claims." Compl.  Ex. A. The balance of the debt for
the car, a 2018 Chevy Malibu, after Mr. Ross's payment
appears to have been $23, 574.20. Compl  Ex. A.
Third Amended Complaint, Mr. Ross changed his pleading in
only one significant way: he removed the allegation that one
of Defendant's principle places of business was Oregon.
Compare Compl.  at ¶3, with Compl.
 at ¶3. The Third Amended Complaint now asserts that
Defendant is incorporated in the state of Washington and is
located in Washington. Therefore, the Third Amended Complaint
alleges complete diversity.