Relion Manufacturing, Inc. v. Tri-Pac, Inc.

Filing 42

ORDER that Plaintiff's 41 Objections to the M&R are overruled; accepting 40 Memorandum and Recommendations; and denying 34 Motion to Dismiss. Signed by District Judge Martin Reidinger on 03/01/2019. (ni)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00282-MR-DSC

RELION MANUFACTURING, INC.,

)
)
Plaintiff,
)
)
vs.
)
)
TRI-PAC, INC.,
)
)
Defendant/
)
Third Party
)
Plaintiff,
)
)
vs.
)
)
APTARGROUP, INC.,
)
)
Third Party
)
Defendant.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Third Party Defendant
AptarGroup, Inc.’s Motion to Dismiss, or in the Alternative, Motion to Compel
Arbitration and Stay Judicial Proceedings [Doc. 34]; the Magistrate Judge’s
Memorandum and Recommendation [Doc. 40] regarding the disposition of
that motion; and the Third Party Defendant’s Objections to the Memorandum
and Recommendation [Doc. 41].

Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation
of this Court, the Honorable David S. Cayer, United States Magistrate Judge,
was designated to consider the Third Party Defendant’s motion and to submit
a recommendation for its disposition.
On February 8, 2019, 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 and alternative motion to
compel arbitration. [Doc. 40]. 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 Third Party

Defendant timely filed Objections on February 22, 2019. [Doc. 41].
The Third Party Defendant AptarGroup, Inc. (“Aptar”) objects to the
Magistrate Judge’s recommendation that the Motion to Dismiss pursuant to
Rule 12(b)(6) should be denied. In so arguing, Aptar complains that the
Magistrate Judge addressed only the first count of the Third Party Complaint
and did not address the insufficiency of the allegations with respect to the
other two counts. [Doc. 41 at 2]. Aptar, however, did not raise any specific
argument in its Motion to Dismiss regarding the insufficiency of the
allegations pled in support of the second and third counts of the Third Party
Complaint. Rather, it limited its Rule 12(b)(6) argument solely to the first
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count.

[See Doc. 35 at 8-10].

Aptar cannot use its objections to the

Memorandum and Recommendation as a platform to raise new issues it
never asserted in its Rule 12(b)(6) motion. See ContraVest Inc. v. Mt.
Hawley Ins. Co., 273 F. Supp. 3d 607, 620 (D.S.C. 2017) (“the court is not
obligated to consider new arguments raised by a party for the first time in
objections to the magistrate’s report”) (citation omitted).

This objection,

therefore, is overruled.
With respect to the other objections raised by Aptar, after careful
consideration of the Memorandum and Recommendation and the Plaintiff’s
Objections thereto, the Court finds that the Magistrate Judge’s proposed
conclusions of law are correct and consistent with current case law.
Particularly, the Magistrate Judge concluded that the arbitration clause is not
part of the contract between the parties because of the operation of § 2-207
of the UCC. [See Doc. 40 at 6]. Aptar did not even address § 2-207 in its
motion to compel arbitration. In its objections, however, Aptar complains that
the Magistrate Judge failed to make any findings regarding whether the
attempt to include the arbitration clause in the parties’ contract was an
unreasonable surprise.

[See Doc. 41 at 8].

Again, an objection to a

Memorandum and Recommendation is not the appropriate forum to raise a
new basis for the relief sought. See ContraVest, 273 F. Supp. 3d at 620.
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Moreover, to the extent that it argues that such findings are necessary, Aptar
has failed to present any record on which the Court could make such
findings.
Accordingly, the Court hereby overrules the Plaintiff’s Objections and
accepts the Magistrate Judge’s recommendation that the motion to dismiss
and alternative motion to compel arbitration should be denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objections to the
Memorandum and Recommendation [Doc. 41] are OVERRULED; the
Memorandum and Recommendation [Doc. 40] is ACCEPTED; and the Third
Party Defendant’s Motion to Dismiss, or in the Alternative, Motion to Compel
Arbitration and Stay Judicial Proceedings [Doc. 34] is DENIED.
IT IS SO ORDERED.
Signed: March 1, 2019

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