Ramos v. AAA of the Carolinas

Filing 27

MEMORANDUM OF DECISION AND ORDER: Plaintiff's 25 response, which the Court construes as an objection to the 24 Memorandum and Recommendation, is OVERRULED, and the 24 recommendation of the Magistrate Judge is ACCEP TED. Defendant's 5 Motion to Dismiss is GRANTED, and the Plaintiff's claims for fraud (Count I) and for the breach of the covenant of good faith and fair dealing (Count VII) are hereby DISMISSED WITH PREJUDICE. The Clerk of Court shall se nd the pro se Plaintiff a Notice of Availability of the Settlement Assistance Program. Plaintiff shall have 14 days (the "Opt in Period") to decide whether to participate in the Program and return the completed Notice form to the Clerk of Court in Asheville. The deadline for conducting an initial attorneys' conference is tolled during this Opt in Period. Signed by District Judge Martin Reidinger on 11/28/2017. (Pro se litigant served by US Mail.) (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00058-MR-DLH

JEWELL RAMOS,

)
)
Plaintiff,
)
)
vs.
)
)
)
AAA OF THE CAROLINAS,
)
a/k/a CAROLINA MOTOR
)
CLUB, INC.,
)
)
Defendant.
)
__________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss

[Doc.

5];

the

Magistrate

Judge’s

Memorandum

and

Recommendation [Doc. 24] regarding the disposition of that motion; and the
pro se Plaintiff’s “Response and Memorandum to Support Its Opposition to
the Defendant’s Motion to Dismiss” [Doc. 25].
I.

PROCEDURAL BACKGROUND
On January 27, 2017, the Plaintiff, through counsel, filed a Complaint

in the Henderson County General Court of Justice, Superior Court Division,
asserting state law claims for fraud, defamation of character, intentional
infliction of emotional distress, negligent infliction of emotional distress, and

breach of the covenant of good faith and fair dealing, as well as federal
claims under the Americans with Disability Act, 42 U.S.C. § 12101, et seq.,
and the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. [Doc. 1-2]. The
Defendant removed the action to this Court on February 27, 2017. [Doc. 1].
Thereafter, the Defendant filed a Motion to Dismiss the Plaintiff’s claims for
fraud (Count I) and for the breach of the covenant of good faith and fair
dealing (Count VII). [Doc. 5]. 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 to Dismiss and to submit a recommendation for its
disposition.
Plaintiff’s counsel sought two extensions of time to respond to the
motion [Docs. 7, 10], which the Court allowed [Docs. 9, 12]. On May 1, 2017,
the Plaintiff, proceeding pro se, filed a third motion for extension of time on
the grounds that her counsel had closed her practice without notice and had
“disappeared.” [Doc. 13]. The Court granted the pro se Plaintiff’s request
for an extension and further ordered the Plaintiff’s counsel to advise the
Court whether she intended to continue representing the Plaintiff in this

2

matter. [Docs. 15, 16]. Plaintiff’s counsel never responded to the Court’s
Order.
The pro se Plaintiff requested an stay 60 days in order to retain new
counsel before responding to the Motion to Dismiss [Doc. 17], which the
Court allowed [Doc. 19]. No new counsel, however, made an appearance
on the Plaintiff’s behalf. Following the expiration of the 60-day stay, the Court
entered an Order directing the Plaintiff to respond to the Motion to Dismiss
by August 28, 2017 and warning that no further extensions of time would be
granted. [Doc. 20]. On August 25, 2017, the pro se Plaintiff filed another
motion for extension of time [Doc. 21], which the Court denied [Doc. 23].
On October 31, 2017, the Magistrate Judge issued a Memorandum
and Recommendation, recommending that the Defendant’s Motion to
Dismiss be granted. [Doc. 24]. 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. On November 13, 2017,
the Plaintiff filed a pleading entitled “Plaintiff’s Response and Memorandum
to Support Its Opposition to the Defendant’s Motion to Dismiss.” [Doc. 25].
The Defendant filed a Response to the Plaintiff’s pleading on November 27,
2017. [Doc. 26]. This matter is now ripe for disposition.

3

II.

STANDARD OF REVIEW
The Federal Magistrate Act requires a district court to “make a de novo

determination of those portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In
order “to preserve for appeal an issue in a magistrate judge’s report, a party
must object to the finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the true ground for
the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
The Court is not required to review, under a de novo or any other standard,
the factual or legal conclusions of the magistrate judge to which no objections
have been raised. Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,
the Court need not conduct a de novo review where a party makes only
“general and conclusory objections that do not direct the court to a specific
error in the magistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
III.

DISCUSSION
Despite receiving numerous extensions to do so, the Plaintiff did not

respond to the Defendant’s Motion to Dismiss in a timely manner. After the
Magistrate Judge entered his Memorandum and Recommendation, the

4

Plaintiff filed a “Response and Memorandum to Support Its Opposition to the
Defendant’s Motion to Dismiss” [Doc. 25]. To the extent that the Plaintiff’s
filing purports to be a response to the Motion to Dismiss, it is untimely and
shall not be considered. To the extent that the Plaintiff’s filing purports to be
objections to the Magistrate Judge’s Memorandum and Recommendation,
the Plaintiff’s filing does not identify any specific error in the Magistrate
Judge’s proposed conclusions of law. Rather, the Plaintiff simply restates
the allegations made in her Complaint and asserts arguments in opposition
to the Defendant’s 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, the
Court concludes that the Magistrate Judge’s proposed conclusions of law
are correct and are consistent with current case law. Accordingly, the Court

5

hereby accepts the Magistrate Judge’s recommendation that the Defendant
Motion to Dismiss should be granted, and that Counts I and VII of the
Plaintiff’s Complaint should be dismissed.
IV.

CONCLUSION
Having conducted a careful review of the Memorandum and

Recommendation, the Court concludes that the Magistrate Judge’s
proposed conclusions of law are supported by and are consistent with
current case law.
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s
“Response and Memorandum to Support Its Opposition to the Defendant’s
Motion to Dismiss” [Doc. 25], which the Court construes as an objection to
the Memorandum and Recommendation, is OVERRULED, and the
recommendation of the Magistrate Judge [Doc. 24] is ACCEPTED.
IT IS FURTHER ORDERED that the Defendant’s Motion to Dismiss
[Doc. 5] is GRANTED, and the Plaintiff’s claims for fraud (Count I) and for
the breach of the covenant of good faith and fair dealing (Count VII) are
hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that The Clerk of Court shall send the pro
se Plaintiff a Notice of Availability of the Settlement Assistance Program.

6

The Plaintiff shall have fourteen (14) days (the “Opt in Period”) to decide
whether to participate in the Pro Se Settlement Assistance Program and
return the completed Notice form to the Clerk of Court in Asheville. The
deadline for conducting an initial attorneys’ conference is tolled during this
Opt in Period.
IT IS SO ORDERED.

Signed: November 28, 2017

7