Lee v. Eller, et al.,

Filing 128

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that plaintiff's Motion to WithdrawSettlement Agreement, ECF 123 , be denied and that this action be dismissed with prejudice. Objections to R&R due by 5/11/2015. Signed by Magistrate Judge Norah McCann King on 4/23/2015. (pes) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTIONE S. LEE,
Plaintiff,
vs.

Civil Action 2:13-cv-0087
Judge Marbley
Magistrate Judge King

BRAD ELLER, et al.,
Defendant.
REPORT AND RECOMMENDATION
On April 3, 2015 counsel for the remaining defendant filed a
stipulated dismissal that purports to dismiss all remaining claims in
the action. Stipulation of Dismissal with Prejudice, ECF 121. On April
13, 2015, plaintiff, who is currently proceeding without the
assistance of counsel, filed a motion to withdraw the settlement
agreement. Motion to Withdraw Agreement of Settlement and Dismissal
with Prejudice, ECF 123 (“Motion to Withdraw Settlement Agreement”).
In that motion, plaintiff appears to concede that the parties settled
the case, but she asks to withdraw the settlement agreement, alleging
that defendant acted in breach of the agreement. Id. The Court
directed the parties to brief the Motion to Withdraw Settlement
Agreement, Order, ECF 125, and the parties have now done so. Motion
and Report to Court Order, ECF 126; Defendant’s Response to
Plaintiff’s Motion to Withdraw (Doc. 123), ECF 127.
Defendant confirms that plaintiff’s hormone treatment has not
been discontinued, as plaintiff feared.

Affidavit of Hannah Godsey,

R.N., attached to ECF 127. Plaintiff reports that she has “no problem

1

with dismissing her case,” Motion and Report to Court Order, p. 2, but
asks that the Court conduct a telephone conference “just so the
settlement agreement and release of claims can be on [the] record.”
Id.
As this history makes clear, the parties have agreed to all terms
of settlement and dismissal of the case, with prejudice, is
appropriate. A copy of the entire settlement agreement, including the
parties’ signatures, is attached to plaintiff’s Motion to Withdraw
Settlement Agreement. There is thus no need for a telephone conference
with the Court.
It is therefore RECOMMENDED that plaintiff’s Motion to Withdraw
Settlement

Agreement,

ECF

123,

be

denied

and

that

this

action

be

dismissed with prejudice.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that

“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

April 23, 2015

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge

3

to