Mutter v. Peake, et al
ORDER Plaintiff's 23 Objections are OVERRULED; 20 Memorandum and Recommendation is ACCEPTED; Defendants' 17 Motion to Dismiss is GRANTED; and this case is DISMISSED WITH PREJUDICE. Signed by District Judge Martin Reidinger on 01/12/18. (Pro se litigant served by US Mail.) (emw)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:16-cv-00309-MR-DLH
DIANE J. MUTTER,
MELISSA BRAGG, DAVID
FULLER, and ROBERT A.
THIS MATTER is before the Court on the Plaintiff’s letter dated
December 23, 2017 [Doc. 23], which the Court construes as Objections to
the Magistrate Judge’s Memorandum and Recommendation [Doc. 20]
regarding the disposition of the Defendants’ Motion to Dismiss [Doc. 17].
On December 8, 2017, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in support of a
recommendation regarding the Defendants’ Motion to Dismiss. [Doc. 20].
The parties were advised that any objections to the Magistrate Judge’s
Memorandum and Recommendation were to be filed in writing within
fourteen (14) days of service. Having received no objections, on January 8,
2018, the Court entered an Order accepting the Memorandum and
Recommendation and dismissing this action. [Doc. 21].
On January 8, 2018, the Court received the Plaintiff’s letter, which was
dated December 23, 2017. The envelope indicates that UPS attempted
delivery of the letter on December 27, 2017, but that the delivery was
UPS did not attempt delivery again until January 8, 2018,
approximately twelve days later.
Had the Plaintiff’s letter been delivered properly on December 27,
2017, it would have been accepted as timely. In the interest of fairness, the
Court will deem the Plaintiff’s Objections to have been timely filed and will
therefore consider them.
The Magistrate Judge recommended granting the Defendants’ Motion
to Dismiss on the grounds that this Court lacks subject matter jurisdiction
over the Plaintiff’s breach of contract claim. In the alternative, to the extent
that the Plaintiff’s Amended Complaint could be read to allege a claim for
employment discrimination, the Magistrate Judge reasoned that her claim is
time-barred. [Doc. 20]. The Plaintiff’s Objections do not identify any specific
error in the Magistrate Judge’s proposed conclusions of law. Rather, the
The package does not indicate why the package was refused or who refused it.
Plaintiff simply restates the allegations made in her Complaint and the
arguments asserted in her Response to the Defendants’ Motion to Dismiss.
These kinds of objections do not warrant a de novo review of the Magistrate
Judge’s reasoning. Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich.
2004) (“A general objection, or one that merely restates the arguments
previously presented is not sufficient to alert the court to alleged errors on
the part of the magistrate judge. An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that
term is used in this context.”).
After a careful review of the Memorandum and Recommendation and
the Plaintiff’s Objections, the Court concludes that the Magistrate Judge’s
proposed conclusions of law are still correct and are consistent with current
case law. Accordingly, the Court hereby accepts the Magistrate Judge’s
recommendation that the Defendants’ Motion to Dismiss should be granted
and this case should be dismissed.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objections [Dc. 23]
are OVERRULED; the Memorandum and Recommendation [Doc. 20] is
ACCEPTED; the Defendants’ Motion to Dismiss [Doc. 17] is GRANTED; and
this case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed: January 12, 2018
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