United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad Jr. United States District Judge
MATTER comes before the Court on Bradford
Preparatory School's, Jeff McManus', and Kelly
Painter's (“Defendants”) Motion to Dismiss,
(Doc. No. 5); their Memorandum in Support, (Doc. No. 6);
their Second Motion to Dismiss, (Doc. No. 13); their
Memorandum in Support, (Doc. No. 14); Romus Myers's and
Nikki Rush's (“Plaintiffs”) Response in
Opposition, (Doc. No. 16); Defendants' Reply, (Doc. No.
17); and the Magistrate Judge's Memoranda and
Recommendations (“M&R”) on both of
Defendants' motions, (Doc. Nos. 15, 18), recommending
that this Court dismiss Defendant's first motion to
dismiss as moot and deny Defendant's second motion based
on Plaintiffs' sufficient allegations. The parties have
not filed objections to either of the M&Rs and the time
for doing so has expired. Fed.R.Civ.P. 72(b)(2).
party has objected to the Magistrate Judge's statement of
the factual and procedural background of this case.
Therefore, the Court adopts the facts as set forth in both
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal
Magistrate Act provides that a district court “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” Id. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(3). However, “when objections to
strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). De novo review is also not required
“when a party makes general or conclusory objections
that do not direct the court to a specific error in the
magistrate judge's proposed findings and
recommendations.” Id. Similarly, when no
objection is filed, “a district court need not conduct
a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'” Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72, advisory committee
Rule 72(b) of the Federal Rules of Civil Procedure, a
district court judge shall make a de novo determination of
any portion of an M&R to which specific written objection
has been made. A party's failure to make a timely
objection is accepted as an agreement with the conclusions of
the Magistrate Judge. See Thomas v. Arn, 474 U.S.
140, 149-50 (1985). No objection to either of the M&Rs
have been filed. Furthermore, the time for doing so has
passed. The parties have therefore waived their right to de
novo review of any issue covered in the M&R.
Nevertheless, this Court has conducted a full review of the
M&R and other documents of record and, having done so,
hereby finds that the recommendation of the Magistrate Judge
is, in all respects, in accordance with the law and should be
Court agrees with the Magistrate Judge that Plaintiffs'
timely filed “First Amended Complaint, ”
(Document No. 11), and Defendants' subsequent
“Second Motion to Dismiss” renders the first
motion to dismiss moot. (Doc. No. 15). Second, the Court
agrees with the Magistrate Judge that Plaintiff has
sufficiently pleaded all their allegations. As such,
Plaintiffs' Complaint should survive a motion to dismiss.
The Court would specifically note that it agrees with the
Magistrate Judge that Plaintiffs breach of contract claim
survives on a distinction between enforcing substantive
rights under codes of conduct and enforcing procedural
mechanisms for imposing discipline. That is, the Court finds
McFayden v. Duke Univ., 786 F.Supp.2d 887 (M.D. N.C.
2011), persuasive enough to allow Plaintiffs' claim to
survive at least until discovery has been completed and
dispositive motions have been filed.
the Court ADOPTS the recommendations of the
Magistrate Judge as its own.
CONCLUSION IT IS, THEREFORE,
1. The Magistrate Judge's M&R, (Doc. No. 15), is
2. Defendants' Motion to Dismiss, (Doc. No. 5), is
DENIED AS MOOT;
3. The Magistrate Judge's M&R, (Doc. No. 18), is