First National Insurance Company of America v. Livesay et al

Filing 15

ORDER approving 12 Memorandum and Recommendations and denying 7 Motion to Dismiss. Signed by District Judge Martin Reidinger on 02/16/2018. (ni)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00086-MR-DLH

FIRST NATIONAL INSURANCE
COMPANY OF AMERICA,

)
)
)
Plaintiff,
)
)
vs.
)
)
BRENDA LIVESAY and RONALD
)
LIVESAY AND BRENDA LIVESAY
)
FAMILY TRUST,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Defendants’ Motion to
Dismiss

[Doc.

7];

the

Magistrate

Judge’s

Memorandum

and

Recommendation [Doc. 12] regarding the disposition of that motion; and the
Defendants’ Objections to the Memorandum and Recommendation [Doc.
14].
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).
The Defendants’ Objections do not identify any specific error in the
Magistrate Judge’s proposed conclusions of law. Rather, the Defendants
simply restate arguments made in support of their 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

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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
hereby accepts the Magistrate Judge’s recommendation that the
Defendants’ Motion to Dismiss should be denied.
IT IS, THEREFORE, ORDERED that the Defendants’ Objections [Doc.
14] are OVERRULED, and the recommendation of the Magistrate Judge
[Doc. 12] is ACCEPTED.
IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss
[Doc. 7] is DENIED.
IT IS SO ORDERED.
Signed: February 16, 2018

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