Boyter et al v. Bank of America Corporation et al

Filing 29

ORDER granting 12 Motion to Dismiss for Failure to State a Claim; affirming 28 Memorandum and Recommendations.. Signed by Chief Judge Robert J. Conrad, Jr on 11/20/2012. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-189-RJC-DCK
DIANNE B. BOYTER and DIRK E.
BERGHMANS,
Plaintiff,
v.
BANK OF AMERICA
CORPORATION, BANK OF
AMERICA HOME LOANS
SERVICING, LP, successors in interest
to COUNTRYWIDE FINANCIAL; and
JOHN and JANE DOES 1-10,
Defendants.

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ORDER

THIS MATTER comes before the Court on Defendants’ Motion To Dismiss, (Doc. No.
12), and the Magistrate Judge’s Memorandum and Recommendation (“M&R”), (Doc. No. 28),
recommending that this Court grant Defendants’ Motion. The parties have not filed objections
to the M&R and the time for doing so has expired. FED . R. CIV . P. 72(b)(2).
I.

BACKGROUND
Neither party has objected to the Magistrate Judge's statement of the factual and

procedural background of this case, and the Court thus adopts the facts as set forth in the M&R.
II.

STANDARD OF REVIEW
The district court may assign dispositive pretrial matters pending before the court to a

magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. §
636(b)(1)(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” Id. at § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.

1983). However, “when objections to strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute “when a party
makes general or conclusory objections that do not direct the court to a specific error in the
magistrate judge’s proposed findings and recommendations.” Id. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting FED . R. CIV . P. 72 advisory committee’s note).
III.

DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge shall

make a de novo determination of any portion of an M&R to which specific written objection has
been made. FED . R. CIV . 72(b). No objection to the M&R having been filed, the parties have
waived their right to de novo review of any issue covered in the M&R. Nevertheless, this Court
has conducted a full and careful review of the M&R and other documents of record and, having
done so, hereby finds that the recommendation of the Magistrate Judge is, in all respects, in
accordance with the law and should be approved. Accordingly, the Court ADOPTS the
recommendation of the Magistrate Judge as its own.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that the Magistrate Judge’s M&R is ADOPTED and

Defendants’ Motion to Dismiss, (Doc. No. 12), is GRANTED.

Signed: November 20, 2012