Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Thomas E. Proctor Heirs Trust

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Schwab 11 , granting deft's MTD 6 , DISMISSING pltf's complaint 1 w/out prejudice & directing deft to respond to amended complaint 12 pursuant to Local Rules. (See order for complete details.) Signed by Honorable Christopher C. Conner on 7/18/2013. (ki)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION, Plaintiff : : : : : v. : : THOMAS E. PROCTOR HEIRS TRUST, : under Declaration of Trust Dated : October 28, 1980, which is Recorded in : Sullivan County in Book 1106, at page 879, : its successors and assigns, : Defendant : CIVIL ACTION NO. 1:12-CV-1567 (Judge Conner) ORDER AND NOW, this 18th day of July, 2013, upon consideration of the Report and Recommendation of United States Magistrate Judge Susan E. Schwab (Doc. 11), recommending that defendant’s motion to dismiss (Doc. 6) be granted, and, following an independent review of the record, it appearing that neither party has objected to the magistrate judge’s report and recommendation, 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 and Recommendation of Magistrate Judge Schwab (Doc. 11) are ADOPTED. 2. Defendant’s motion to dismiss (Doc. 6) is GRANTED. 3. Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice. The court notes that plaintiff filed an amended complaint (Doc. 12) on July 18, 2013. Defendant shall respond to the amended complaint pursuant to Local Rules. S/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge 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.

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