Hanson, et al v. 3M Company, et al

Filing 81

ORDER granting Dft's 65 Motion to Dismiss; and the Pla's claims against the Dft Mannington Mills, Inc., are hereby dismissed. Plaintiff's 79 Objections are overruled; the 78 Memorandum and Recommendation is accepted. Signed by District Judge Martin Reidinger on 6/27/2017. (kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00328-MR-DLH

LISA HANSON, Individually and as,
Executrix of the Estate of Delmont D.
Hanson, TONY HANSON,

)
)
)
)
Plaintiffs,
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)
vs.
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3M COMPANY, et al.,
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Defendants.
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__________________________________ )

ORDER

THIS MATTER is before the Court on the Motion to Dismiss filed by
the Defendant Mannington Mills, Inc. (hereinafter “Defendant Mills”) [Doc.
65]; the Magistrate Judge’s Memorandum and Recommendation regarding
the disposition of that motion [Doc. 78]; and the Plaintiff’s Objections to the
Memorandum and Recommendation [Doc. 79].
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation
of this Court, the Honorable Dennis L. Howell, United States Magistrate
Judge, was designated to consider the pending motion in the abovecaptioned action. On April 24, 2017, the Magistrate Judge filed a
Memorandum and Recommendation [Doc. 78], in which the Magistrate

Judge recommended granting Defendant Mills’ Motion to Dismiss. 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. The Plaintiff timely filed her Objections to the
Memorandum and Recommendation on May 8, 2017. [Doc. 79]. Defendant
Mills filed a Reply to the Plaintiff’s Objections on May 22, 2017. [Doc. 79].
After careful consideration of the Plaintiff’s Objections, the Court finds
that the Magistrate Judge’s proposed conclusions of law are correct and
consistent with current case law. Accordingly, the Court hereby overrules
the

Plaintiff’s

Objections

and

accepts

the

Magistrate

Judge’s

recommendation that the Defendant’s Motion to Dismiss be granted.
In her Objections, the Plaintiff asserts the Magistrate Judge erred by
failing to provide her an opportunity to amend her Amended Complaint. In
her Response to Defendant Mills’ Motion to Dismiss, the Plaintiff requested
an opportunity to amend her Amended Complaint in the event the Magistrate
Judge found her allegations insufficient. [Doc. 74 at 8-9]. In the Memorandum
and Recommendation, the Magistrate Judge correctly noted that Local Rule
7.1(C)(2) provides that a motion cannot be contained in a responsive brief.

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[Doc. 78 at 8 n. 1]. Accordingly, the Magistrate Judge declined to address
the Plaintiff's request to amend. [Id.]
Despite Plaintiff’s acknowledge of her failure to adhere to the
requirements of Local Rule 7.1(C)(2), Plaintiff renews her request to amend,
not by the filing of a separate motion, but as part of her Objections to the
Memorandum and Recommendation. [Doc. 79 at 2, 7–8]. Plaintiff again
requests she be granted leave to amend should this Court agree with the
Magistrate Judge’s recommendation. [Id.].
Plaintiff’s request is not well-taken. The request to amend is not only
in contravention of the Court's Local Rules but also an obvious attempt to
circumvent the recommendation of the Magistrate Judge regarding the
disposition of Defendant Mills’ Motion to Dismiss. See Googerdy v. N.C.
Agric. and Technical State Univ., 386 F.Supp.2d 618, 623 (M.D.N.C.2005).
The Plaintiff cannot now attempt to circumvent the Magistrate Judge’s
recommendation by seeking to amend her Amended Complaint. See Bailey
v. Polk County, No. 1:10cv264, 2011 WL 4565449, at *4 (W.D.N.C. Sept. 29,
2011). Moreover, allowing such amendment would impermissibly place the
Court in the position of rending an advisory opinion. See Glazer v. Chase
Home Finance LLC, No. 1:09CV1262, 2010 WL 1391318, at *1 (N.D.Ohio

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Mar. 31, 2010). For these reasons, the Plaintiff’s request to amend the
Amended Complaint is denied.
IT IS, THEREFORE, ORDERED that the Plaintiffs’ Objections [Doc.
79] are OVERRULED; the Memorandum and Recommendation [Doc. 78] is
ACCEPTED; the Defendants’ Motion to Dismiss [Doc. 65] is GRANTED; and
the Plaintiff’s claims against the Defendant Mannington Mills, Inc., are
hereby DISMISSED.
IT IS SO ORDERED.
Signed: June 27, 2017

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