Buffman v. United States of America et al

Filing 60

ORDER Adopting 57 Report and Recommendation and Denying Defendant's 43 Motion to Dismiss - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Emmett Buffman,
Case No. 13-cv-14024
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub

Plaintiff,
v.
United States of America,
Defendant.
_______________________________/

ORDER ADOPTING [57] REPORT AND RECOMMENDATION
AND DENYING DEFENDANT’S [43] MOTION TO DISMISS
This matter is before the Court on Magistrate Judge Mona K.
Majzoub’s Report and Recommendation (Dkt. 57), issued on February
12, 2015, in which the Magistrate Judge recommends the Court deny
without prejudice defendant United States of America’s Motion to
Dismiss or, in the alternative, for Summary Judgment (Dkt. 43).
The basis for the recommendation is that the issue of whether
plaintiff’s allegations satisfy the elements of a medical malpractice
claim under Michigan law is properly resolved on a motion for summary
judgment, not a motion to dismiss. (Dkt. 57 at 7.) And since plaintiff
1

has sought to conduct discovery in this matter, but has not been able to
do so, it would be premature to grant summary judgment. (Id.) The
Magistrate Judge further notes that she has granted plaintiff’s Motion
to Appoint Counsel and stayed this matter pending the outcome of
referral to the Court’s Pro Bono Committee. (Id.)
Plaintiff

has

not

filed

objections

to

the

Report

and

Recommendation, and the time for doing so has expired. See 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2).

Defendant was granted an

extension of time in which to file objections until March 26, 2015. (Dkt.
59.) Defendant has not filed objections. The failure to object relieves
this Court from its duty to review this matter independently. Thomas
v. Arn, 474 U.S. 140, 149 (1985). The Court has nonetheless thoroughly
reviewed the Report and Recommendation, defendant’s Motion to
Dismiss or, in the alternative, for Summary Judgment, plaintiff’s
Response, defendant’s Reply, and the record as a whole, and agrees
with the findings and conclusions of the magistrate judge.
Accordingly, the Magistrate Judge’s Report and Recommendation
(Dkt. 57) is ADOPTED; and

2

Defendant’s Motion to Dismiss or, in the alternative, for Summary
Judgment (Dkt. 43) is DENIED without prejudice.
IT IS SO ORDERED.
Dated: March 27, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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 March 27, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

3