Baker v. LNV Corporation

Filing 20

ORDER Accepting and Adopting 17 Report and Recommendation in Part, Dismissing Defendant's 2 Motion to Dismiss as Moot and Permitting Plaintiff's Filed 18 Amended Complaint. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LONNIE BAKER,
Plaintiff,

Civil Action No.
11-CV-14086

vs.
HON. MARK A. GOLDSMITH
LNV CORPORATION,
Defendant.
_____________________________________/
ORDER (1) ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION
IN PART, (2) DISMISSING DEFENDANT’S MOTION TO DISMISS AS MOOT, AND
(3) PERMITTING PLAINTIFF’S 8/13/12-FILED AMENDED COMPLAINT
This matter is presently before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Komives, entered on July 13, 2012. Dkt. 17. The R&R
concludes that Plaintiff’s instant complaint (Dkt. 1-1) fails to state a claim, and is subject to
dismissal. The R&R also notes Plaintiff’s request to amend the instant complaint, and
ultimately recommends that Defendant’s motion to dismiss (Dkt. 2) be granted without
prejudice to Plaintiff filing an amended complaint within a set amount of time. Neither party
has filed objections to the R&R and the time to do so has expired. Thus, the parties have
waived any further right to appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985).
Although the Court agrees completely with the analysis and recommendation of the
R&R, subsequent events prevent the Court from adopting it outright. On August 13, 2012,
Plaintiff filed an amended complaint. Dkt. 18. As the amended complaint has already been
filed, the Court need not grant the motion to dismiss without prejudice to the Plaintiff filing
an amended complaint at some point in the future. Thus, the Court will instead:
(i)

accept Plaintiff’s amended complaint (Dkt. 18),

(ii)

dismiss the pending motion to dismiss (Dkt. 2) as moot, without prejudice to
Defendant re-filing a motion to dismiss addressing the amended complaint,
and

(iii)

accept the and adopt the R&R (Dkt. 17) in part.

SO ORDERED.
Dated: August 24, 2012
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of
record and any unrepresented parties via the Court's ECF System to their respective email or
First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on August 24,
2012.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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