Carter et al v. Daehan Solutions

Filing 43

ORDER directing as follows: (1) 40 REPORT AND RECOMMENDATION of the Mag Judge is ADOPTED as to the Magistrate Judge's ultimate conclusion that the 38 motion to dismiss should be denied, but, in consideration of defense counsel's further explanation set out in the objection, no unethical conduct is found as to counsel; (2) defendant's 38 MOTION to Dismiss is DENIED. Signed by Honorable William Keith Watkins on 9/8/08. (Attachments: # 1 civil appeals checklist)(djy, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O RT H E R N DIVISION DESHAUN CARTER, et al., P l a i n t iff s , v. D A E H A N SOLUTION ALABAMA, LLC, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:07cv988-WKW (W O ) ORDER O n July 30, 2008, the Magistrate Judge filed a Recommendation in this case. (Doc. # 40.) Defendant Daehan Solution Alabama, LLC, filed an Objection on July 31, 2008, and a Correction on August 12, 2008.1 (Docs. # 41 & 42.) Defendant accepts all substantive c o n c lu s io n s of the Recommendation, but objects to the Magistrate Judge's observation that th e Motion to Dismiss (Doc. # 38) was "ethically . . . inappropriate." (Doc. # 41 at 1-3; Doc. # 40 at 2.) Counsel equates "ethically . . . inappropriate" with being accused of unethical c o n d u c t. (Doc. # 41 at 2-3.) The Objection claims the Magistrate Judge appeared to c o n c lu d e "that Defendant's counsel was attempting to represent Plaintiff Ford in filing the m o tio n ." (Id. at 1.) In fact, the Magistrate Judge did not make that conclusion, noting in s te a d , "Daehan's counsel do not in any way represent" the subject plaintiff. (Doc. # 40 In its Answer, Defendant says that its name is "improperly designated in the Complaint as Daehan Solutions." (Doc. # 7 at 1.) The court sua sponte AMENDS the caption to reflect Defendant's correct name. The parties are DIRECTED to use the new caption as it appears on this Order for all future submissions to the court, and the Clerk is DIRECTED to change the caption accordingly. 1 a t 2.) Upon an independent review and a de novo determination of that portion of the R e c o m m e n d a tio n to which objection is made, it is ORDERED as follows: 1. T h e Recommendation (Doc. # 40) is ADOPTED as to the Magistrate Judge's u ltim a te conclusion that the Motion to Dismiss (Doc. # 38) should be denied, but, in c o n sid e ra tio n of defense counsel's further explanation set out in the objection,2 no unethical c o n d u c t is found as to counsel. 2. D e f e n d a n t's Motion to Dismiss (Doc. # 38) is DENIED. D O N E this 8th day of September, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE The Magistrate Judge made his finding on the bare record before him and did not have the benefit of this additional explanation from defense counsel. 2 2

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