Foster et al v. Lowe's Companies, Inc. et al

Filing 34

ORDER denying as moot Defendant's 19 Motion to Dismiss in Part. The Court adopts 30 Order and Recommendations. Signed by District Judge Richard Voorhees on 2/22/2017. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:16-CV-00161-RLV-DCK
MICHAEL FOSTER and RONALD
BOUCHARD,
Plaintiffs,
v.
LOWE’S COMPANIES, INC.
and NILOY INC., d/b/a/ DCT
SYSTEMS,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendants’ Motion to Dismiss
Plaintiffs’ Complaint in Part (Doc. 19) and the Memorandum and Recommendation (the “M&R”)
of Magistrate Judge David C. Keesler (Doc. 30). In the M&R, Magistrate Judge Keesler
recommends that the Defendants’ Motion be denied as moot because leave was granted to the
Plaintiffs to file an amended complaint. Id. at 2-3. Plaintiffs filed an Amended Complaint (Doc.
31) on February 1, 2017 and Defendants filed answers to the Amended Complaint (Docs. 32, 33).
The parties have not filed objections to the M&R, and the time for doing so has expired. See Fed.
R. Civ. Pro. 72(b)(2).
The Federal Magistrate Act provides that a court may “designate a magistrate judge to
conduct hearings . . . and to submit . . . proposed findings of fact and recommendations for the
disposition [of dispositive motions.]” 28 U.S.C. § 636(b)(1)(B). The 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.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d
198, 200 (4th Cir. 1983); accord Fed. R. Civ. Pro. 72(b)(3). “By contrast, in the absence of a
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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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72, Advisory Committee Note).
Defendants’ failure to make timely object to the M&R is accepted as an agreement with
the conclusions of the M&R. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Furthermore,
Plaintiffs’ representation that Defendants did not oppose their motion for leave to amend supports
the conclusion that Defendants are in agreement with the M&R as Plaintiffs’ amendment to their
complaint renders moot Defendants’ Motion to Dismiss in part. (See Doc. 29 at 2; Doc. 31).
Accordingly, no objection to the M&R having been filed, and the time for doing so having expired,
the parties have waived their right to de novo review of any issue discussed in the M&R.
After a careful review of the record, the Court finds that the M&R is supported by the
record and is consistent with and supported by law. Finding no clear error, the Court ADOPTS
the recommendation in the M&R. (See Doc. 30). Because the Plaintiffs’ Amended Complaint
(Doc. 31) supersedes the Plaintiffs’ initial complaint (Doc. 1) and does not contain the count of
which Defendants sought dismissal (Compare Doc. 1 at 19-21, with Doc. 31 at 18-22; see also
Doc. 19 at 1), Defendants’ Motion to Dismiss in Part (Doc. 19) is DENIED AS MOOT.
SO ORDERED.

Signed: February 22, 2017

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