Davis et al v. Ace Hardware Corporation et al

Filing 370

REPORT AND RECOMMENDATIONS recommending granting of D.I. #369 MOTION to Dismiss Based upon Plaintiffs' Failure to File an Amended Complaint filed by United Technologies Corporation. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/28/2014. Signed by Judge Christopher J. Burke on 8/11/2014. (dlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

HARRY A. DAVIS and
MADONNA S. DAVIS,
Plaintiffs,
V.

ACE HARDWARE
CORPORATION., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 12-1185-SLR-CJB

REPORT AND RECOMMENDATION

At Wilmington this 11th day of August, 2014.
WHEREAS, on April11, 2014, this Court entered an Order granting Defendants' Motion
to Dismiss Plaintiffs' Complaint for Failure to Comply with Florida's Asbestos and Silica
Compensation Fairness Act ("the Act"), filed pursuant to Rule 12(b)(6), and which informed
Plaintiffs that if they did not file an Amended Complaint by June 6, 2014, their claims may be
deemed dismissed with prejudice, (D.I. 356); and
WHEREAS, despite being given a further extension to do so until July 14, 2014, (D.I.
366), Plaintiffs informed the Court that they could not meet the requirements of the Act and
therefore could not file an Amended Complaint by the deadline imposed by the Court, and stated
that they understood that their failure to do so might require dismissal of this case with prejudice
(D.I. 368); and
WHEREAS, Defendants thereafter filed a Motion to Dismiss Plaintiffs' Complaint for
Failure to File an Amended Complaint ("Motion"), (D.I. 369); and
WHEREAS, Plaintiffs filed no response to Defendants' Motion by August 7, 2014, the

due date set by the Court for a responsive filing, and have otherwise provided no reason why this
case should not be dismissed;
NOW THEREFORE, the Court recommends that the District Court order that
Defendants' Motion to Dismiss Plaintiffs' Complaint for Failure to File an Amended Complaint
(D.I. 369) be GRANTED and that the above-captioned matter be dismissed with prejudice, as to
all Defendants.

Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

2