Clanton v. Sam's Club et al

Filing 29

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 27 ; Defendant's Motion to Dismiss 17 is granted; this case is dismissed ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HERBERT W.G. CLANTON, Plaintiff, CASE No. 1:21-CV-53 v. HON. ROBERT J. JONKER SAM’S CLUB, et al., Defendants. __________________________________/ ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION The Court has reviewed Magistrate Judge Berens’ Report and Recommendation (ECF No. 27) and Plaintiff’s Objection to the Report and Recommendation (ECF No. 28). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that: The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the Report and Recommendation itself; and Plaintiff’s objections. After its review, the Court finds the Magistrate Judge correctly concluded that Plaintiff’s Complaint fails to state a Twombly plausible claim. The Magistrate Judge recommends granting the defense motion to dismiss (ECF No. 17) and dismissing this action. In his objections, Plaintiff primarily reiterates and expands upon arguments presented in his original response brief. His objections fail to deal in a meaningful way with the Magistrate Judge’s analysis and the Rule 8 pleading standard. The Magistrate Judge carefully and thoroughly considered the record, the parties’ arguments, and the governing law. The Magistrate Judge properly analyzed Plaintiff’s claims. Nothing in Plaintiff’s Objections changes the fundamental analysis. ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (ECF No. 27) is APPROVED AND ADOPTED as the opinion of the Court. IT IS FURTHER ORDERED that: 1. Defendant’s Motion to Dismiss (ECF No. 17) is GRANTED; and 2. This case is DISMISSED. A separate Judgment shall issue. Dated: July 16, 2021 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE 2

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