Barrows v. Harrisburg University of Science and Technology
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Schwab 16 , GRANTING deft's motion to dismiss complaint 5 w/ re: pltf's Section 1983 claims & ct declining to exercise supp'l jurisdiction w/ re: pltf's state law bre ach of contract claim, DISMISSING pltf's complaint 1 w/out prejudice *& granting pltf leave to file amended complaint w/in 20 days of date of this order.... w/ failure to file in timely fashion to be deemed abandonment of claims & matter to be dismissed w/ prejudice, & REMANDING case to Magistrate Judge Schwab for further proceedings. (See order for complete details.)Signed by Honorable Christopher C. Conner on 7/10/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PROFESSOR SUSAN BARROWS,
Plaintiff
v.
HARRISBURG UNIVERSITY OF
SCIENCE AND TECHNOLOGY,
Defendant
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CIVIL ACTION NO. 1:12-CV-2077
(Judge Conner)
ORDER
AND NOW, this 10th day of July, 2013, upon consideration of the Report and
Recommendation of United States Magistrate Judge Susan E. Schwab (Doc. 16),
recommending that (1) Defendant’s motion to dismiss (Doc. 5) be granted with respect to
Plaintiff’s § 1983 claims, (2) the Court should decline to exercise supplemental jurisdiction
with respect to Plaintiff’s state law breach of contract claim, and (3) Plaintiff’s complaint
be dismissed, with leave to amend, 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. 16) are
ADOPTED.
2.
Defendant’s motion to dismiss the complaint (Doc. 5) is GRANTED with
respect to Plaintiff’s § 1983 claims. The Court declines to exercise
supplemental jurisdiction with respect to Plaintiff’s state law breach of
contract claim.
3.
Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice. Plaintiff is
granted leave to file an amended complaint within twenty (20) days of the
date of this order, which shall address the deficiencies set forth in Magistrate
Judge Schwab’s Report and Recommendation. Failure to file an amended
complaint in a timely fashion shall be deemed an abandonment of these
claims and this matter shall be dismissed with prejudice.
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.
2
4.
The above-captioned case is REMANDED to Magistrate Judge Schwab for
further proceedings.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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