Franklin et al v. Dana Holding Corporation et al

Filing 61

ORDER ADOPTING and ACCEPTING the Magistrate Judge's 52 REPORT AND RECOMMENDATION, DENYING 47 MOTION for Summary Judgment, FINDING AS MOOT 48 MOTION to Strike as set out herein. Dana Companies, LLC's 57 Amended Objections are hereby STRICKEN as untimely and filed without leave. Signed by Judge Virginia Emerson Hopkins on 10/20/2017. (JLC)

FILED
2017 Oct-20 PM 12:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNA FRANKLIN, as Personal
)
Representative of the Estate of RAY )
FRANKLIN, Deceased,
)
)
Plaintiff,
) Case No.: 2:11-CV-2731-VEH
)
v.
)
)
DANA COMPANIES, LLC, f/k/a
)
Dana Corporation, et al.,
)
)
Defendants.
)
)

ORDER OVERRULING OBJECTIONS AND
ADOPTING THE REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
This case comes before the Court on Dana Companies, LLC’s (“Dana’s”)
motion for summary judgment (doc. 47) and a motion to strike (doc. 48) filed by the
Plaintiff, Donna Franklin, regarding Dana's motion. On August 31, 2017, the
magistrate entered a Report and Recommendation wherein she stated, in pertinent
part:
the undersigned RECOMMENDS Dana's motion for summary
judgment be DENIED as an impermissible renewed motion. (Doc. 47).
The undersigned FURTHER RECOMMENDS Plaintiff's motion to
strike be DENIED as MOOT. (Doc. 48).

(Doc. 52 at 8) (bold in original). The deadline for objecting to that recommendation
was September 14, 2017. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Dana
timely filed objections to the recommendation on September 14, 2017. (Doc. 54).
In that document, Dana requested oral argument. That request is DENIED. Dana
filed “amended objections” to the recommendation on September 21, 2017. (Doc.
57). Document 57 is STRICKEN as untimely filed without leave.
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation omitted).
It is incumbent upon the parties to timely raise any objections that they may have
regarding a magistrate judge’s findings contained in a report and recommendation,
as the failure to do so subsequently waives or abandons the issue, even if such matter
was presented at the magistrate judge level. See, e.g., U.S. v. Pilati, 627 F.3d 1360
at 1365 (11th Cir. 2010) (“While Pilati raised the issue of not being convicted of a
qualifying offense before the magistrate judge, he did not raise this issue in his appeal
to the district court. Thus, this argument has been waived or abandoned by his failure
to raise it on appeal to the district court.”). However, the district judge has discretion
to consider or to decline to consider arguments that were not raised before the
magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also
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Williams v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009). “Parties filing objections
must specifically identify those findings objected to. Frivolous, conclusive or general
objections need not be considered by the district court.” Nettles, 677 F.2d at 410 n.
8. “This rule facilitates the opportunity for district judges to spend more time on
matters actually contested and produces a result compatible with the purposes of the
Magistrates Act.” Id. at 410. Indeed, a contrary rule “would effectively nullify the
magistrate judge's consideration of the matter and would not help to relieve the
workload of the district court.” Id. (quoting United States v. Howell, 231 F.3d 615,
622 (9th Cir. 2000)). Dana’s objections have failed to meet these standards.
Furthermore, after reviewing de novo the entire file, including the Report and
Recommendation, and Dana’s timely objection thereto, the Court is of the opinion
that the magistrate’s recommendation is due to be, and hereby is, ADOPTED and
ACCEPTED as the opinion of this Court. The Court EXPRESSLY FINDS that
Dana's motion for summary judgment (doc. 47) is due to be, and hereby is, DENIED
as an impermissible renewed motion. The Court further EXPRESSLY FINDS that
the Plaintiff’s motion to strike (doc. 47) is DENIED as MOOT.
DONE and ORDERED this 20th day of October, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge
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