United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendant's
Motion to Dismiss [Doc. 5]; the Magistrate Judge's
Memorandum and Recommendation [Doc. 24] regarding the
disposition of that motion; and the pro se
Plaintiff's “Response and Memorandum to Support Its
Opposition to the Defendant's Motion to Dismiss”
January 27, 2017, the Plaintiff, through counsel, filed a
Complaint in the Henderson County General Court of Justice,
Superior Court Division, asserting state law claims for
fraud, defamation of character, intentional infliction of
emotional distress, negligent infliction of emotional
distress, and breach of the covenant of good faith and fair
dealing, as well as federal claims under the Americans with
Disability Act, 42 U.S.C. § 12101, et seq., and
the Family Medical Leave Act, 29 U.S.C. § 2601, et
seq. [Doc. 1-2]. The Defendant removed the action to
this Court on February 27, 2017. [Doc. 1]. Thereafter, the
Defendant filed a Motion to Dismiss the Plaintiff's
claims for fraud (Count I) and for the breach of the covenant
of good faith and fair dealing (Count VII). [Doc. 5].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders
of Designation of this Court, the Honorable Dennis L. Howell,
United States Magistrate Judge, was designated to consider
the Defendant's Motion to Dismiss and to submit a
recommendation for its disposition.
counsel sought two extensions of time to respond to the
motion [Docs. 7, 10], which the Court allowed [Docs. 9, 12].
On May 1, 2017, the Plaintiff, proceeding pro se,
filed a third motion for extension of time on the grounds
that her counsel had closed her practice without notice and
had “disappeared.” [Doc. 13]. The Court granted
the pro se Plaintiff's request for an extension
and further ordered the Plaintiff's counsel to advise the
Court whether she intended to continue representing the
Plaintiff in this matter. [Docs. 15, 16]. Plaintiff's
counsel never responded to the Court's Order.
pro se Plaintiff requested an stay 60 days in order
to retain new counsel before responding to the Motion to
Dismiss [Doc. 17], which the Court allowed [Doc. 19]. No new
counsel, however, made an appearance on the Plaintiff's
behalf. Following the expiration of the 60-day stay, the
Court entered an Order directing the Plaintiff to respond to
the Motion to Dismiss by August 28, 2017 and warning that no
further extensions of time would be granted. [Doc. 20]. On
August 25, 2017, the pro se Plaintiff filed another
motion for extension of time [Doc. 21], which the Court
denied [Doc. 23].
October 31, 2017, the Magistrate Judge issued a Memorandum
and Recommendation, recommending that the Defendant's
Motion to Dismiss be granted. [Doc. 24]. The parties were
advised that any objections to the Magistrate Judge's
Memorandum and Recommendation were to be filed in writing
within fourteen (14) days of service. On November 13, 2017,
the Plaintiff filed a pleading entitled
“Plaintiff's Response and Memorandum to Support Its
Opposition to the Defendant's Motion to Dismiss.”
[Doc. 25]. The Defendant filed a Response to the
Plaintiff's pleading on November 27, 2017. [Doc. 26].
This matter is now ripe for disposition.
STANDARD OF REVIEW
Federal Magistrate Act requires a district court to
“make a de novo determination of those
portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). In order “to preserve for appeal an
issue in a magistrate judge's report, a party must object
to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.” United
States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
The Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of
the magistrate judge to which no objections have been raised.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Additionally, the Court need not conduct a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
receiving numerous extensions to do so, the Plaintiff did not
respond to the Defendant's Motion to Dismiss in a timely
manner. After the Magistrate Judge entered his Memorandum and
Recommendation, the Plaintiff filed a “Response and
Memorandum to Support Its Opposition to the Defendant's
Motion to Dismiss” [Doc. 25]. To the extent that the
Plaintiff's filing purports to be a response to the
Motion to Dismiss, it is untimely and shall not be
considered. To the extent that the Plaintiff's filing
purports to be objections to the Magistrate Judge's
Memorandum and Recommendation, the Plaintiff's filing
does not identify any specific error in the Magistrate
Judge's proposed conclusions of law. Rather, the
Plaintiff simply restates the allegations made in her
Complaint and asserts arguments in opposition to the
Defendant's Motion to Dismiss. These kinds of objections
do not warrant a de novo review of the Magistrate
Judge's reasoning. Aldrich v. Bock, 327
F.Supp.2d 743, 747 (E.D. Mich. 2004) (“A general
objection, or one that merely restates the arguments
previously presented is not sufficient to alert the court to
alleged errors on the part of the magistrate judge. An
‘objection' that does nothing more than state a
disagreement with a magistrate's suggested resolution, or
simply summarizes what has been presented before, is not an
‘objection' as that term is used in this
careful review of the Memorandum and Recommendation, the
Court concludes that the Magistrate Judge's proposed
conclusions of law are correct and are consistent with
current case law. Accordingly, the Court hereby accepts the
Magistrate Judge's recommendation that the Defendant
Motion to Dismiss should be granted, and that Counts I and
VII of the Plaintiff's Complaint should be dismissed.
conducted a careful review of the Memorandum and
Recommendation, the Court concludes that the Magistrate
Judge's proposed conclusions of law are ...