Escalante v. Vicar Operating Incorporated et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Raquel Escalante,
Plaintiff,
v.
Vicar Operating Incorporated, et al.,
Defendants.
No. CV-25-00339-TUC-RCC (LCK)
ORDER
On November 19, 2025, Magistrate Judge Lynette C. Kimmins issued a Report
and Recommendation (“R&R”) in which she recommended the Court dismiss Plaintiff
Raquel Escalante’s Amended Complaint without prejudice. (Doc. 44.) The Magistrate
Judge informed the parties they had fourteen days to file objections and an additional
fourteen days to respond. (Id. at 17.) No objections have been filed. Upon review, the
Court will adopt the R&R and dismiss Plaintiff’s Amended Complaint.
The standard of review of a magistrate judge’s R&R is dependent upon whether a
party objects: where there is no objection to a magistrate’s factual or legal
determinations, the district court need not review the decision “under a de novo or any
other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a party
objects, the district court must “determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
Case 4:25-cv-00339-RCC-LCK Document 45 Filed 12/09/25 Page 1 of 3

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
636(b)(1). Moreover, “while the statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude further review by the district judge,
sua sponte or at the request of a party, under a de novo or any other standard.” Thomas,
474 U.S. at 154.
The Court has reviewed the Amended Complaint (Doc. 18), Defendants’ Motion
to Dismiss (Doc. 40), Plaintiff’s Response to the Motion to Dismiss (Doc. 42),
Defendants’ Reply (Doc. 43), and Judge Kimmins’ R&R (Doc. 44). The Court finds the
R&R well-reasoned and agrees with Judge Aguilera’s conclusions.
If Plaintiff believes she can remedy the defects stated in the R&R, Plaintiff shall
have 30 days from the date of this order to file a Second Amended Complaint. The
amended pleading must be on a form for employment discrimination claims, available on
the Court's website, here: https://www.uscourts.gov/forms/rules/forms/complaint-
employment-discrimination. Plaintiff must clearly designate on the face of the document
that it is a "Second Amended Complaint." If Plaintiff fails to use the court-approved
form, the Court may strike the Second Amended Complaint and dismiss this action
without further notice to Plaintiff. The Second Amended Complaint must be retyped or
rewritten in its entirety on the court-approved form and may not incorporate any part of
the prior complaints by reference. An amended complaint supersedes any prior
complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios
v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the
Court will treat the prior complaints as nonexistent. Ferdik, 963 F.2d at 1262. Plaintiff is
reminded of her obligation to comply with all rules of procedure and Court orders,
regardless of her pro se status. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
Failure to do so may result in dismissal of the action. Fed. R. Civ. P. 41(b); Ferdik, 963
F.2d at 1260. If Plaintiff does not file an amended complaint within the deadline set by
the Court, this case will be subject to dismissal without further notice.
As Plaintiff was notified when she initiated this case, the Court has an advice
clinic for people that are representing themselves. (Doc. 5 at 7.) If Plaintiff chooses to
Case 4:25-cv-00339-RCC-LCK Document 45 Filed 12/09/25 Page 2 of 3

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
seek advice through the clinic, she should click the button that says, "Apply for help" at
https://www.stepuptojustice.org/.
Accordingly, IT IS ORDERED:
1.) Magistrate Judge Kimmins’ Report and Recommendation is ADOPTED. (Doc.
44.)
2.) Plaintiff’s First Amended Complaint is DISMISSED without prejudice. (Doc. 18.)
3.) Plaintiff may file a Second Amended Complaint in compliance with the Report
and Recommendation and this Order within 30 days of the date of this Order.
4.) If a Second Amended Complaint is not filed within 30 days of the date of this
Order, the Clerk of Court must enter a judgment of dismissal of this action without
prejudice and without further notice to Plaintiff.
Dated this 8th day of December, 2025.
Case 4:25-cv-00339-RCC-LCK Document 45 Filed 12/09/25 Page 3 of 3