Creech v. Charlotte Area Transit System, Inc. et al

Filing 24

ORDER granting 16 Motion to Dismiss without prejudice ; denying as moot 18 Motion to Remand to State Court; adopting 22 Memorandum and Recommendations. Signed by Senior Judge Graham Mullen on 03/7/2025. (mdp) .

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00328-GCM-SCR
TERRY CREECH,
Plaintiff,
v.
CHARLOTTE AREA TRANSIT
SYSTEM, INC. and CITY OF
CHARLOTTE,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

ORDER

THIS MATTER is before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint, (Doc. No. 16); Plaintiff’s Second Motion to Remand,
(Doc. No. 18); the Magistrate Judge’s Memorandum and Recommendation (“M&R”),
(Doc. No. 22), recommending that this Court grant Defendants’ Motion to Dismiss,
dismiss this matter without prejudice, and deny as moot Plaintiff’s Motion to
Remand; and other documents of record. 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).
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 and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and 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. Objections to the M&R were due by
December 4, 2024. (Doc. No. 22). On December 5, 2024, the Magistrate Judge
entered the following Text-Only Order:
It appearing to the Court that Plaintiffs counsel Jonathan Metcalf has
been disbarred by the North Carolina State Bar, see NC State Bar v.
Jonathan Metcalf, 24 DHC 9, Order of Disbarment, he is ORDERED to
file a Motion to Withdraw from this matter. In that filing Mr. Metcalf
shall include all of Plaintiffs contact information and certify that he
has sent a copy of this Order and of the Courts November 20,
2025 Memorandum and Recommendation (Doc. No. 22) to Plaintiff. In
light of this development, the time for Plaintiff to file an Objection to
the Memorandum and Recommendation is extended through January
6, 2025. The Clerk is respectfully directed to mail a copy of this Order
to Mr. Metcalf. So Ordered.

This first Text-Only Order was mailed by the Clerk’s office to Mr. Metcalf at
his address of record but was returned as undeliverable on December 17, 2024.
(Doc. No. 23).
On December 23, 2024, having not received a response from Mr. Metcalf or
any objections, the Magistrate Judge issued a second Text-Only Order:
It appearing to the Court that Plaintiffs counsel Jonathan Metcalf has
been disbarred by the North Carolina State Bar, see NC State Bar v.
Jonathan Metcalf, 24 DHC 9, Order of Disbarment, and that attempts
to contact him at his record address have failed, the Court enters the
following Order: The Court ORDERS Mr. Metcalf to file a Certificate of
Service stating the pro se Plaintiffs contact information and certifying
that he has sent a copy of this Order, of the Courts 12/5/2024 TextOnly Order and of the Courts November 20, 2025 Memorandum and
Recommendation (Doc. No. 22) to Plaintiff. In light of those
developments, the time for Plaintiff to file an Objection to the
Memorandum and Recommendation is extended through January 31,
2025. The Clerk is respectfully directed to mail a copy of this Order
and the other Orders referenced above to Mr. Metcalf at 834 Dudley
Street, Charlotte, NC 28205. So Ordered.
That same day, this second Text-Only Order was mailed to Mr. Metcalf at an
address that the Magistrate Judge’s chambers staff obtained from the North
Carolina State Bar. This mailing was not returned, and neither Mr. Metcalf nor the
Plaintiff responded to it.
The Magistrate Judge’s staff informed the Court that on February 7, 2025,
still not having received any response from Mr. Metcalf or Plaintiff, the Magistrate
Judge’s staff called a telephone number for a “T Creech,” also obtained from the
State Bar. The call was answered by voicemail. The outgoing message was a male
voice and identified the speaker as “Terry.” The staff member left a voicemail, but
the call has yet to be returned.

Accordingly, no objection to the M&R having been filed, and the time for
doing so, including two extensions, 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. 22), is ADOPTED;
2. Defendants’ Motion to Dismiss, (Doc. No. 16), is GRANTED pursuant to
Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5), and this matter is
DISMISSED WITHOUT PREJUDICE; and
3. Plaintiff’s Second Motion to Remand, (Doc. No. 18) is DENIED AS
MOOT.
Signed: March 7, 2025