Clark Distribution Systems, Inc. v. ALG Direct, Inc. et al

Filing 121

ORDER ADOPTING REPORT of the magistrate judge 117 , GRANTING pltf's partial motion to dismiss 94 , & DISMISSING ALG's amended counterclaim 93 with prejudice to the limited extent that it seeks to state a claim for loss of business damages in connection with its counterclaim for breach of contract. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/29/14. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CLARK DISTRIBUTION SYSTEMS,
INC.,
Plaintiff

: CIVIL ACTION NO. 1:10-CR-2575
: (consolidated)
: (Chief Judge Conner)
:
v.
:
:
ALG DIRECT, INC.,
:
Defendant
:
===========================================
THE CLARK GROUP, INC.,
:
Plaintiff
:
:
v.
:
:
ALG DIRECT, INC.,
:
Defendant/Third Party Plaintiff :
:
v.
:
:
CLARK DISTRIBUTION SYSTEMS, :
INC.,
:
Third-Party Defendant
:
ORDER
AND NOW, this 29th day of May, 2014, upon consideration of the report of
Magistrate Judge Susan E. Schwab (Doc. 117) recommending the court grant plaintiff
Clark Distribution Systems, Inc.’s (“CDS”) partial motion (Doc. 94) to dismiss
defendant’s amended counterclaim (Doc. 93) for loss of business damages in connection
with its counterclaim for breach of contract, and, following an independent review of the
record, the court agreeing with the magistrate judge that CDS’s motion is timely and not
moot, and the court further agreeing that the parties’ Transportation Services
Agreement (“TSA”) precludes ALG’s claim for loss of business damages against CDS,

and it further appearing that neither party has objected to the report, and that there is
no clear error on the face of the record,1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir.
2007) (explaining that “failing to timely object to [a report and recommendation] in a civil
proceeding may result in forfeiture of de novo review at the district court level”), it is
hereby ORDERED that:
1.

The report of the magistrate judge (Doc. 117) is ADOPTED in its entirety.

2.

Plaintiff’s partial motion (Doc. 94) to dismiss is GRANTED.

3.

ALG’s amended counterclaim (Doc. 93) is DISMISSED with prejudice to
the limited extent that it seeks to state a claim for loss of business damages
in connection with its counterclaim for breach of contract.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
1

When parties fail to file timely objections to a magistrate judge’s report and
recommendation, the Federal Magistrates Act does not require a district court to
review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a
matter of good practice, however, the Third Circuit expects courts to “afford some
level of review to dispositive legal issues raised by the report.” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule
72(b) of the Federal Rules of Civil Procedure indicate that “[w]hen no timely
objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” FED . R. CIV . P. 72(b),
advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating that “the
failure of a party to object to a magistrate’s legal conclusions may result in the loss
of the right to de novo review in the district court”); Tice v. Wilson, 425 F. Supp. 2d
676, 680 (W.D. Pa. 2006) (holding that the court’s review is conducted under the
“plain error” standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding
that the court’s review is limited to ascertaining whether there is “clear error on the
face of the record”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding
that the court will review the report and recommendation for “clear error”). The
court has reviewed the magistrate judge’s report and recommendation in
accordance with this Third Circuit directive.