Sealey v. Stidham et al (JOINT ASSIGN)(MAG+)

Filing 35

OPINION. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 8/27/2015. (dmn, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION MELVIN L. SEALEY, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. TAMARA A. STIDHAM (Senior Vice Pres. of Branch Banking and Trust Company), et al., Defendants. CIVIL ACTION NO. 2:14cv1036-MHT (WO) OPINION Plaintiff asserting Melvin a foreclosure L. variety of his Sealey of filed claims property. this lawsuit related This to lawsuit the is now before the court on the recommendation of the United States Magistrate dismiss Sealey’s motions filed by Judge case that be Sealey defendants’ granted be and denied. objections to the recommendation. motion that to various There are no However, Sealey has filed a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) as to four of the five defendants: Tamara A. Stidham, Edward A. R. Miller, Richard A. Wright, and Kelly S. King. dismissal is permissible under the This voluntary applicable rule because these defendants have not yet filed an answer or motion for recommendation summary will be judgment. withdrawn as Thus, to the these four defendants. After an independent and de novo review of the record, the court concludes that the magistrate judge’s recommendation should be adopted as to the remaining defendant, exception. Branch Banking and Trust, with a minor The recommendation mistakenly asserts that Branch Banking and Trust was not named as a party and was not served. See Recommendation (doc. no. 30), at 18; but see Complaint (doc. no. 1-2), at 3 (listing Branch Banking and Trust as a defendant). While it is unclear whether Branch Banking and Trust was properly served, it has appeared through counsel in this matter, joined in filing the notice of removal and motion to dismiss, and seemingly acknowledged having been served 2 in the notice of removal. In any case, this minor misstatement makes no difference in the result. In addition, the recommended denial of Sealey’s motion to amend the complaint is proper because Sealey has not shown how amendment would allow him to state a viable claim (for example, by noting ‘how’ in an objection to the recommendation) and because it does not appear that an amendment would save his claims. An appropriate judgment will be entered. DONE, this the 27th day of August, 2015. /s/ Myron H. Thompson____ UNITED STATES DISTRICT JUDGE 3

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