Evans v. Nebr Beef

Filing 41

MEMORANDUM AND ORDER regarding pending motions. 1. The plaintiff's objection (Filing No. 38 ) to the magistrate judge's findings and recommendations (Filing No. 28 ) is denied. 2. The plaintiff's in forma pauperis request is denied as moot. 3. The findings and recommendations of the magistrate judge (Filing No. 28 ) are adopted in all respects. 4. The defendant's motion to dismiss and/or strike (Filing No. 21 ) is granted as stated. 5. The plaintiff's motion for a hearing (Filing No. 33 ) is denied. 6. The plaintiff's motion for default judgment (Filing No. 40 ) is denied. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES EVANS III,
Plaintiff,

8:12CV161

vs.
MEMORANDUM AND ORDER
NEBRASKA BEEF, LTD.,
Defendant.

This matter is before the court on the plaintiff’s “notice of appeal and in forma
pauperis request,” Filing No. 38, which the court will construe a statement of objections
to the Findings and Recommendations (“F&R”) of the magistrate judge, Filing No. 28,
on the defendant’s motion to strike and/or dismiss, Filing No. 21. The plaintiff also
requests a hearing on the motion, Filing No. 33. The plaintiff has also filed a motion for
default judgment, Filing No. 40.
The court first finds that the motion for default judgment should be denied
because the defendant is not in default. Under the federal rules, the defendant has 14
days from the date of notice of the disposition of a Rule 12 motion in which to file an
answer or responsive pleading. Fed. R. Civ. P. 12(a)(4)(A). Also, the plaintiff need not
pay any filing fee in connection with a statement of objections and the in forma pauperis
request will be denied as moot.
In his largely unintelligible statement of objections to the F&R, the plaintiff, pro
se, asserts that “no 2014 March trial needed when Cortez supra extant 8:08cv90 on this
court’s docket which is defendant now denying.” Filing No. 38. Under Fed. R. Civ. P.
72(b)(2), a district court reviews de novo those portions of a magistrate judge’s order

that are objected to by a party. Grinder v. Gammon, 73 F.3d 793, 792 (8th Cir. 1996).
“A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge” or may “receive further evidence or
recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).
In its F&R, the magistrate judge recommended dismissal of the plaintiff’s
purported RICO conspiracy claims and also recommended that certain allegations be
stricken form the plaintiff’s second amended complaint. On de novo review, the court
finds the plaintiff’s objection should be denied and the magistrate judge’s
recommendation should be adopted in all respects.

The court agrees with the

magistrate judge’s finding that the allegations of the plaintiff’s second amended
complaint do not state a claim for RICO violations. Filing No. 38, F&R at 7. The court
further agrees that the plaintiff’s RICO-related statements, his request for referral to the
United States Attorney and his class-action references are improper and should be
stricken. The plaintiff’s arguable assertion that the Cortez case is somehow dispositive
of his claims is without merit. That action involves the settlement of three consolidated
class and collective actions against Nebraska Beef, Inc., for alleged FLSA violations.
See Fermin Cortez v. Nebraska Beef, Inc., Nos. 8:08cv90, 8:08cv99, 8:10cv208, Filing
No. 394, Order Approving Settlement. The court also finds no hearing on the motion is
necessary. Accordingly,
IT IS ORDERED:
1.

The plaintiff’s objection (Filing No. 38) to the magistrate judge’s findings and

recommendations (Filing No. 28) is denied.
2.

The plaintiff’s in forma pauperis request is denied as moot.
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3.

The findings and recommendations of the magistrate judge (Filing No. 28)

are adopted in all respects.
4.

The defendant’s motion to dismiss and/or strike (Filing No. 21) is granted as

follows:
(a)

The plaintiff’s claims based on RICO or discrimination, to the extent
they were alleged, are dismissed.

(b)

The plaintiff’s statements referencing “class members” or multiple
plaintiffs, discriminatory actions by the defendant, a RICO violation
and associated requests for a referral to the U.S. Attorney, and
request that he be referred to as “POE-Boy” are deemed stricken
from the Second Amended Complaint.

(c)

The plaintiff need not file another amended complaint; the court and
parties shall proceed as if the statements were removed from the
pleading.

5.

The plaintiff’s motion for a hearing (Filing No. 33) is denied.

6.

The plaintiff’s motion for default judgment ( Filing No. 40) is denied.

DATED this 20th day of August, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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