Noble et al v. Worthington Industries Inc

Filing 68

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that the claims of Brad Smith be dismissed and that final judgment be entered in this action. Objections to R&R due by 4/27/2015. Signed by Magistrate Judge Norah McCann King on 4/8/2015. (pes1)(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

MARK NOBLE, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-0366
Judge Watson
Magistrate Judge King

WORTHINGTON INDUSTRIES, INC.,
Defendant.

REPORT AND RECOMMENDATION
The only claims remaining in this action are those originally
asserted by plaintiff Brad Smith, whose death was suggested on the
record. Suggestion of Death, ECF 56. Boyd and Kathleen Smith, who have
been identified as the successors of the deceased plaintiff,
Suggestion of Death of Brad Smith, ECF 63, were served with process in
accordance with Rule 25 of the Federal Rules of Civil Procedure.
Status Report, ECF 66. On January 13, 2015, Boyd and Kathleen Smith
were directed to file a motion for substitution as plaintiffs in this
action by April 7, 2015 if they intended to pursue the claims of the
deceased plaintiff.

Order, ECF 67 (citing Fed. R. Civ. P. 25(a)(1)).

They were specifically advised that their failure to do so would
result in the dismissal of those claims and of this action.

Id. Boyd

and Kathleen Smith have not filed a motion for substitution as
plaintiffs. It therefore appears that they do not intend to pursue the
only claims remaining in this action.
It is therefore RECOMMENDED that the claims of Brad Smith be

dismissed and that final judgment be entered in this action.
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).

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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

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

2

suffice

to

The

Clerk

is

DIRECTED

to

mail

a

copy

of

this

Report

and

Recommendation to Boyd and Kathleen Smith at 237 S. Greenlawn Avenue,
Lima, OH 45807.

April 8, 2015

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

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