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)

Download PDF
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 2 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 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?