Lineberger et al v. CBS Corporation et al
Filing
135
ORDER that the Defendant's Objections to the Memorandum and Recommendation 133 are OVERRULED; Defendant's Motion to Dismiss 91 is DENIED and the Memorandum and Recommendation 127 is ACCEPTED. Signed by District Judge Martin Reidinger on 09/04/17. (emw)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00390-MR-DLH
TOMMY WILLIAM LINEBERGER and )
MARCELLA WILSON LINEBERGER, )
)
Plaintiffs,
)
)
vs.
)
)
CBS CORPORATION, et al.,
)
)
Defendants.
)
_______________________________ )
ORDER
THIS MATTER is before the Court on the Defendant RSCC Wire and
Cable LLC’s Motion to Dismiss [Doc. 91]; the Magistrate Judge’s
Memorandum and Recommendation [Doc. 127] regarding the disposition of
that motion; and the Defendant’s Objections to the Memorandum and
Recommendation [Doc. 133].
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 August 14, 2017, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in support of a
recommendation regarding the motion to dismiss. [Doc. 127]. 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 Defendant timely filed Objections on August 28, 2017. [Doc.
133].
In its Objections, the Defendant argues that the Magistrate Judge erred
in failing to consider the Affidavit of John Regalbuti, the Vice President of
Finance and Controller of RSCC. Even considering the facts presented in
Regalbuti’s Affidavit, however, the Court still concludes that the Defendant’s
Motion should be denied. At this stage in the proceedings, the Court must
draw all reasonable inferences and resolve any factual disputes in favor of
the Plaintiffs. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.
1993). Viewing the Plaintiffs’ allegations in this manner, the Court concludes
for the reasons stated by the Magistrate Judge that the Plaintiffs have made
a prima facie showing sufficient to survive the Defendant’s jurisdictional
challenge.
After careful consideration of the Memorandum and Recommendation
and the Defendant’s Objections thereto, 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 Defendant’s
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Objections and accepts the Magistrate Judge’s recommendation that the
motion to dismiss be denied.
IT IS, THEREFORE, ORDERED that the Defendant’s Objections to the
Memorandum and Recommendation [Doc. 133] are OVERRULED; the
Memorandum and Recommendation [Doc. 127] is ACCEPTED; and the
Defendant’s Motion to Dismiss [Doc. 91] is DENIED.
SO ORDERED.
Signed: September 4, 2017
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