Kamel v. 5Church, Inc et al

Filing 32

ORDER denying without prejudice 23 Motion to Dismiss for Failure to State a Claim; denying without prejudice 26 Motion to Dismiss ; affirming 31 Memorandum and Recommendations. Signed by District Judge Robert J. Conrad, Jr on 7/11/2018. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-507-RJC-DCK
AYMAN KAMEL,

)
)
Plaintiff,
)
)
v.
)
)
5CHURCH, INC., PATRICK WHALEN,
)
MAP MANAGEMENT OF CHARLOTE,
)
LLC, and ALEJANDRO TORIO,
)
)
Defendants.
)
_________________________________________ )
)
5CHURCH INC., and 5CHURCH
)
CHARLESTON, LLC,
)
)
Plaintiffs,
)
)
v.
)
)
Ayman KAMEL,
)
)
Defendant.
)

ORDER

THIS MATTER comes before the Court on Ayman Kamel’s (“Plaintiff’s”)
Motion To Dismiss Counts One, Two And Three Of 5Church, Inc. And 5Church
Charleston’s Complaint, (Doc. No. 23); his Memorandum in Support, (Doc. No. 24);
Plaintiff’s Motion to Dismiss Defendant Patrick Whalen’s Counterclaim Without
Prejudice, (Doc. No. 26); his Memorandum in Support, (Doc. No. 27); 5Church, Inc.
and 5Church Charleston’s Response in Opposition to Plaintiff’s Motion to Dismiss for
Failure to State a Claim, (Doc. No. 25); Defendant Patrick Whalen’s Response in
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Opposition to Plaintiff’s Motion to Dismiss Defendant Whalen’s Counterclaim
Without Prejudice, (Doc. No. 29); Plaintiff’s Reply to 5Church’s Response, (Doc. No.
29); Plaintiff’s Reply to Defendant Whalen’s Response, (Doc. No. 30); and the
Magistrate Judge’s Memorandum and Recommendation (“M&R”), (Doc. No. 31),
recommending that this Court deny Plaintiff’s motions without prejudice.

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
No party has objected to the Magistrate Judge’s statement of the factual and

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

STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to

dismiss, to a magistrate judge for “proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district
court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b)(3). 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). De novo review is also
not required “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
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recommendations.” Id. Similarly, when no objection is filed, “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 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. A party’s failure to make a timely objection is
accepted as an agreement with the conclusions of the Magistrate Judge. See Thomas
v. Arn, 474 U.S. 140, 149–50 (1985). No objection to the M&R having been filed, and
the time for doing so having passed, 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 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:
1. The Magistrate Judge’s M&R, (Doc. No. 31), is ADOPTED;
2. Plaintiff Kamel’s Motion to Dismiss for Failure to State a Claim, (Doc. No.
23), is DENIED WITHOUT PREJUDICE; and
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3. Plaintiff Kamel’s Motion to Dismiss Defendant Whalen’s Counterclaim
Without Prejudice, (Doc. No. 26), is DENIED WITHOUT PREJUDICE.

Signed: July 11, 2018

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