ENGELBERT et al v. MAINFREIGHT, INC.

Filing 85

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS that Magistrate Judge Hammer's 84 Report and Recommendation, is adopted in full; that the claims of opt-in Plaintiffs Lisa Hall and Rebecca Hagler are DISMISSED WITH PREJUDICE. Signed by Judge Kevin McNulty on 3/17/14. (gmd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

:

Civ. No. 11-3430 (KM)(MAH)

:

WILLIAM E. ENGELBERT, et al.,

MEMORANDUM OPINION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiffs,
v.
MAINFREIGHT, INC., et al.,
Defendants.

IT APPEARING THAT:

(1) The Court, by order dated December 16, 2013 [ECF No. 79], required
opt-in plaintiffs Rebecca Hagler and Lisa Hall to appear in person
before Magistrate Judge Michael A. Hammer on December 30, 2013,
for a hearing on Plaintiffs’ counsel’s motion to withdraw from
representing them, to determine whether Ms. Hagler and Ms. Hall
intended to continue to prosecute their claims; and that
(2) The Court made clear that a failure to appear for the December 30,
2013 would result in the issuance of an order to show cause why Ms.
Hagler’s and Ms. Hall’s claims should not be dismissed for a failure to
prosecute, pursuant to Fed. R. Civ. P. 41; and that
(3) Ms. Hagler and Ms. Hall failed to appear for the December 30, 2013
hearing despite being duly notified [ECF No. 80, 81]; and that
(4) The Court, on December 31, 2013, ordered Ms. Hagler and Ms. Hall to
submit, by January 30, 2014, a letter showing cause why their claims
in this matter should not be dismissed as a result of their failure to
prosecute this action or comply with the December 16, 2013 order
[ECF No. 81], and that
(5) The Court advised Ms. Hagler and Ms. Hall that failure to respond to
the December 31, 2013 order by January 30, 2014 would result in the
issuance of a Report and Recommendation that the Undersigned

dismiss their claims due to their failure to prosecute them, pursuant
to Fed. R. Civ. P. 41; and that
(6) Magistrate Judge Hammer issued a Report and Recommendation
dated February 25, 2014 determining that neither Ms. Hagler nor Ms.
Hall complied with the December 31, 2013 order, that neither
appeared to intend to prosecute her claims in this matter, despite
having been afforded numerous opportunities to express such an
intention, and that both appeared to have abandoned their claims, and
recommending that the undersigned dismiss the claims of opt-in
plaintiffs Ms. Hall and Ms. Hagler for failure to prosecute, in
accordance with Fed. R. Civ. P. 41(b); and that
(7) No party filed an objection to the Report and Recommendation within
fourteen days after February 26, 2014, when it was filed and served.
See Local Civil Rule 72.1(c) (14-day deadline for objections); and that
and
Report
Magistrate’s
the
reviews
District Judge
(8) The
Recommendation pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72(b)(3). “A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); see also U.S. v. Raddatz, 447 U.S. 667,
680 (1980) (stating that the district court judge has broad discretion in
accepting or rejecting the magistrate’s recommendation); and that
(9) If there are no objections, this Court has discretion to choose an
appropriate standard of review. See Thomas v. Am, 474 U.S. 140, 154
(1985) (federal statute neither prohibits nor requires a particular
standard if no objections are filed); Goriey v. Clark, 749 F.2d 5, 7 (3d
Cir. 1984). At a minimum, “[wJhat is not objected to, the district court
reviews under the plain error or manifest injustice standard.”
Megaparts v. Highcom Security, No. 09-4052, 2010 U.S. Dist. LEXIS
63497, at *4 (D.N.J. June 25, 2010); see, e.g., Banks v. Gallagher, 686
F. Supp. 2d 499, 505 (M.D. Pa. 2009); Cruz v. Chater, 990 F. Supp.
375, 376—78 (M.D. Pa. 1998) (citing Advisory Committee notes on
Federal Rule of Civil Procedure 72(b), implementing 28 U.S.C. §
636(b)(1)(C)); and that

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(10) Even on a cZe riovo standard, I would affirm the well-reasoned Report
and Recommendation filed by Magistrate Judge Hammer. A fortiori, it
would be upheld on a plain error or manifest injustice standard.
Accordingly, having considered all of the foregoing and the other
documents in the record, and for good cause appearing,
IT IS this 17th day of March, 2014,
ORDERED that Magistrate Judge Hammer’s Report and Recommendation
is adopted in full; and it is further
ORDERED that the claims of opt-in Plaintiffs Lisa Hall and Rebecca
Hagler are DISMISSED WITH PREJUDICE.

—J J_*Ev—
41

HON. KEVIN MCNULTY
United States District Judd

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