Musto et al v. Zaro

Filing 56

ORDER adopting Report and Recommendations re 52 Report and Recommendations.. Signed by Judge James L. Graham on 12/11/2018. (ds)(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

DAVE MUSTO, et al.,
Case No. 2:17-cv-506
Plaintiffs,
v.

Judge Graham

PAULA ZARO,

Magistrate Judge Deavers
Defendant.
ORDER

This matter is before the Court for consideration of Plaintiffs’ objections (ECF No. 54) to
the Report and Recommendation issued by Magistrate Judge Deavers on November 19, 2018.
(ECF No. 52). Magistrate Judge Deavers recommended that default not be entered against
Defendant pursuant to Federal Rule of Civil Procedure 55 at this juncture and further
recommended that:
1.

Defendant’s obligation to respond to the Complaint be suspended, pending issuance

of a new case schedule;
2.

Magistrate Judge Deavers conduct a status conference, by telephone, within forty-

five (45) days from the date of an Order adopting this Report and Recommendation and that
Magistrate Judge Deavers thereafter issue a new case schedule, including a new deadline for
responding to the Complaint (with a reminder warning to Defendant that she must comply with
new deadlines or timely file a motion for extension supported by good cause); and
3.

The dates for the final pretrial conference and trial (ECF No. 40) be vacated and

rescheduled following the issuance of a new case schedule by Magistrate Judge Deavers.

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For the reasons set forth below, the Court OVERRULES Plaintiffs’ objections (ECF No.
54) and ADOPTS the Report and Recommendation issued by Magistrate Judge Deavers on
November 19, 2018. (ECF No. 52).
I.

Standard of Review
Plaintiffs timely filed their objections on November 30, 2018. If a party objects within the

allotted time to a report and recommendation, the Court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). As required by 28 U.S.C. § 636(b)(1)(C), the Court
will make a de novo review of those portions of the Report and Recommendation to which
Plaintiffs specifically object.
II.

Plaintiffs’ Objections
Plaintiffs object to the Report and Recommendation to the extent it recommends that the

dates for the final pretrial conference (currently scheduled for April 5, 2019) and trial (currently
scheduled for May 6, 2019) be vacated. (ECF No. 54 at 1). Plaintiffs assert that, “It would be
materially prejudicial and highly unfair to Plaintiffs to have their day in court delayed because of
Ms. Zaro’s counsel withdrawing and/or because two Orders were incorrectly addressed to Ms.
Zaro after her counsel withdrew.” (Id.). Plaintiffs believe that “the extent of discovery already
conducted in the case” allows “more than sufficient time over the next 90 days to complete
discovery and prepare and file” dispositive motions in advance of the currently scheduled final
pretrial conference date. (Id. at 1–2). Plaintiffs further believe that the telephone status conference

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with Magistrate Judge Deavers could be expedited to the extent that all agree to its immediate
scheduling. (Id. at 2).
III.

Discussion
Plaintiffs’ objections are noted, but the Court also notes the opportunity for their concerns

to be heard at the telephone status conference to be scheduled within forty-five (45) days from the
date of this Order. At that time, Plaintiffs may present their arguments to Magistrate Judge Deavers
as to why the previously scheduled dates for the final pretrial conference and trial should be
reinstated. At that point, Magistrate Judge Deavers may agree to recommend that the Court issue
a notice of hearing reinstating the final pretrial conference date of April 5, 2019 and the trial date
of May 6, 2019. Until such time, the Court shall vacate its previously issued Notice of Hearing
setting those dates (ECF No. 40).
IV.

Conclusion
Upon de novo review, the Court OVERRULES Plaintiffs’ objections (ECF No. 54) and

ADOPTS the Report and Recommendation (ECF No. 52).
IT IS SO ORDERED.

/s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: December 11, 2018

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