Oates v. AXA Equitable Life Insurance Company

Filing 15

ORDER accepting the 14 Memorandum and Recommendations, and the Dft's 5 Motion to Dismiss is granted in part and denied in part. See Order for further details. Signed by District Judge Martin Reidinger on 7/20/2017. (kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00379-MR-DLH

BARBARA OATES,

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Plaintiff,
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vs.
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AXA EQUITABLE LIFE
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INSURANCE COMPANY,
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Defendant.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss [Doc. 5] and the Magistrate Judge’s Memorandum and
Recommendation [Doc. 14] regarding the disposition of that motion.
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 Defendant’s motion and to submit a
recommendation for its disposition.
On July 5, 2017, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in support of a
recommendation regarding the Defendant’s motion. [Doc. 14]. 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 period within which to file objections has expired, and no written
objections to the Memorandum and Recommendation have been filed.
After a careful review of the Magistrate Judge’s Recommendation, the
Court finds that the proposed conclusions of law are consistent with current
case law. Accordingly, the Court hereby accepts the Magistrate Judge’s
recommendation that the Defendant’s Motion to Dismiss be granted in part
and denied in part.
IT IS, THEREFORE, ORDERED that the Memorandum and
Recommendation [Doc. 14] is ACCEPTED, and the Defendant’s Motion to
Dismiss [Doc. 5] is GRANTED IN PART and DENIED IN PART. Specifically,
the Motion is GRANTED with respect to the Plaintiff’s claims for negligent
misrepresentation and breach of fiduciary duty as stated in Counts One and
Four of the Complaint, and these claims are therefore DISMISSED WITH
PREJUDICE. The Motion is DENIED with respect to the Plaintiff’s claims for
a declaratory judgment and breach of contract as stated in Counts Two and
Three of the Complaint.

Signed: July 20, 2017

IT IS SO ORDERED.

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