Cooper v. Johnson et al
Filing
70
ORDER vacating 63 Order and 64 Clerk's Judgment; FURTHER ORDERED the Plaintiffs shall have 14 days from entry of this Order to file objections to the Magistrate Judge's 62 Memorandum and Recommendation. Signed by District Judge Martin Reidinger on 4/24/12. (Pro se litigant served by US Certified Mail.)(nll)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv102
THALIA D. COOPER, et al.,
Plaintiffs,
vs.
LISA JOHNSON, et al.,
Defendants.
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ORDER
THIS MATTER is before the Court on the “Supplemental Memorandum
of Facts with Ruling Law of Authority in Support of Objection to Dismissal of
Complaint” filed by Plaintiff Melvin E. Swanson, Sr. on March 13, 2012 [Doc.
69].
The Court entered an Order accepting the Magistrate Judge's
Memorandum and Recommendation and dismissing this case on January 23,
2012. [Doc. 63]. The Court overruled the Plaintiffs' untimely objections to the
Magistrate Judge's Memorandum and Recommendation on January 27, 2012
and February 6, 2012. [Docs. 66, 68]. Thereafter, on March 13, 2012, the
Plaintiff
Melvin
E.
Swanson,
Sr.
filed
the
present
Memorandum” in support of his Objections. [Doc. 69].
“Supplemental
In his Supplemental Memorandum, the Plaintiff reiterates his objections
to the dismissal of the Plaintiffs’ Complaint, arguing that the Plaintiffs never
received a copy of the Memorandum and Recommendation [Doc. 62] and
therefore were unaware of the Magistrate Judge’s proposed findings and
conclusions, and remain unaware thereof. [Doc. 69].
Under Rule 60(b) of the Federal Rules of Civil Procedure, the Court may
relieve a party from a final judgment for “mistake, inadvertence, surprise, or
excusable neglect,” or “any other reason justifying relief.” Fed. R. Civ. P.
60(b). Upon careful consideration of the Plaintiffs’ Objections, and particularly
their claim that they never received a copy of the Magistrate Judge’s
Memorandum and Recommendation, the Court will exercise its discretion and
re-open this matter so that the Plaintiffs may have an opportunity to file
objections to the Memorandum and Recommendation.
The Plaintiffs are admonished that “parties filing objections must
specifically identify those findings objected to." Battle v. United States Parole
Commission, 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds
Douglass v. United Ervs. Auto. Ass’n, 79 F.3d 1415 (5 th Cir. 1996). If a party
makes only general objections, de novo review is not required. Wells v.
Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997)(boilerplate objections will
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not avoid the consequences of failing to object altogether). This pertains to
legal conclusions as well as proposed findings.
Therefore, as to any
proposed legal conclusions made by the Magistrate Judge the parties must
specifically identify the conclusions to which they object, and then with
citations to legal authorities present to the Court the legal reasons why these
proposed conclusions are incorrect. Failure to do so may result in the Court’s
adoption of the Memorandum and Recommendation and the summary
dismissal of this case.
This Court has much confidence in the truth of the entries in its
electronic record where it states that a document has been mailed to a pro se
party. It is very much out of the ordinary for the Court to allow a party an
extension of the time to object to a Memorandum and Recommendation
based upon that party’s statement that a mailing was never received.
Nonetheless, having read the Plaintiffs’ pleas, in its discretion the Court will
allow this one extension. From this point forward, however, if the Plaintiffs are
aware of the Court having entered a document and believe they have not
received a copy through the mail, it will be the responsibility of the Plaintiffs
to obtain a copy of the document from the Clerk of this Court.
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Accordingly, IT IS, THEREFORE, ORDERED that the Order and
Judgment [Docs. 63, 64] entered in this matter on January 23, 2012 are
hereby VACATED.
IT IS FURTHER ORDERED that the Plaintiffs shall have fourteen (14)
days from the entry of this Order to file objections to the Magistrate Judge’s
Memorandum and Recommendation [Doc. 62]. The Plaintiffs are advised
that failure to file objections to the Memorandum and Recommendation
within the time required will result in the dismissal of this action and
further will preclude the parties from raising such objections on appeal.
The Clerk of Court is hereby DIRECTED to send a copy of this Order,
as well as a
copy of the
Magistrate
Judge’s Memorandum
and
Recommendation [Doc. 62], to the Plaintiffs by certified mail, with said mailing
to take place on the date of the entry of this Order.
IT IS SO ORDERED.
Signed: April 24, 2012
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