Stull et al v. The state of Pennsylvania Bureau of Professional & occupational affairs
Filing
18
ORDER ADOPTING REPORT 17 of Magistrate Judge Schawb in it entirety, DENYING pltfs' motion for class certification 3 , DISMISSING pltf Foreign Cars R US Plus for failure to obtain cnsl, & REMANDING case to Magistrate Judge Schwab for further proceedings. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 11/21/14. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN E. STULL and FOREIGN
CARS R US PLUS,
Plaintiffs
v.
THE COMMONWEALTH OF
PENNSYLVANIA and
DEPARTMENT OF STATE,
BUREAU OF PROFESSIONAL
AND OCCUPATIONAL AFFAIRS,
Defendants
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CIVIL ACTION NO. 1:14-CV-1469
(Chief Judge Conner)
ORDER
AND NOW, this 21st day of November, 2014, upon consideration of the report
(Doc. 17) of Magistrate Judge Susan E. Schwab, recommending the court deny the
plaintiffs’ motion (Doc. 3) for class certification and dismiss plaintiff Foreign Cars R
Us Plus (“Foreign Cars”) because Foreign Cars is a fictitious entity which cannot
represent itself in this matter, and following an independent review of the record,
the court in agreement that plaintiffs have failed to satisfy the class action pleading
requirements set forth in the Federal Rules of Civil Procedure and Local Rules of
Court, see FED. R. CIV. P. 23; LOCAL RULE OF COURT 23.1-23.2, and that Foreign Cars
must be dismissed as a plaintiff for failure to obtain counsel, see Rhino Assocs., L.P.
v. Berg. Mfg. & Sales Corp., 531 F. Supp. 2d 652, 656 (M.D. Pa. 2007) (Conner, C.J.)
(citing Simbraw, Inc. v. United States, 367 F.2d 373, 373 (3d Cir. 1966) (per curiam)),
and it 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 the failure to timely object “may result in forfeiture of de novo
review at the district court level”), it is hereby ORDERED that:
1.
The report (Doc. 17) of Magistrate Judge Susan E. Schwab is
ADOPTED in its entirety.
2.
Plaintiffs’ motion (Doc. 3) for class certification is DENIED.
1
When parties fail to timely object 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 reviews the Magistrate Judge’s report in according with this Third Circuit
directive.
2
3.
Plaintiff Foreign Cars R Us Plus is DISMISSED for failure to obtain
counsel.
4.
This case is REMANDED to Magistrate Judge Schwab for further
proceedings.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
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