Harman v. Tobash et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/31/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES HARMAN,
Plaintiff

:

KATRINA TOBASH and
BB&T BANK,

CIVIL ACTION NO. 3:17-0135

:

v.

:

(MANNION, J.)

:

(CARLSON, M.J.)

:
Defendants
:
MEMORANDUM
Pending before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that the plaintiff’s motion for summary judgment
be dismissed without prejudice. (Doc. 9). Upon review, the report and
recommendation of Judge Carlson will be adopted in its entirety.
By way of relevant background, the plaintiff filed the instant action on
January 25, 2017, in which he alleges that the defendants engaged in a
racketeering scheme of which he was a victim. (Doc. 1). The complaint was
served upon the defendants, after which a motion to dismiss was filed on
March 9, 2017. (Doc. 5).
On March 10, 2017, the plaintiff filed a motion for summary judgment in
which he argues that he is entitled to judgment as a matter of law because
“[t]he defendants have failed to deny any of the claims [and] [f]ailure to deny
is an admission the claims are true.” (Doc. 7).
On March 13, 2017, Judge Carlson filed the instant report, in which he

recommends that the plaintiff’s motion for summary judgment be dismissed
without prejudice because the plaintiff’s motion rests on an erroneous legal
and factual premise. Because the defendants currently have pending a motion
to dismiss the plaintiff’s claims, Judge Carlson correctly provides that they are
not required to submit an answer which admits or denies the factual
allegations presented in the plaintiff’s complaint. It is only after the motion to
dismiss is resolved, and if the complaint is not dismissed, that the defendants
will be required to admit or deny the facts alleged in the complaint. See
Fed.R.Civ.P. 12(a)(4). As a result, Judge Carlson recommends that the
plaintiff’s motion for summary judgment be dismissed without prejudice. No
objections have been filed to Judge Carlson’s report.
Where no objection is made to a report and recommendation, the court
should, as a matter of good practice, “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 Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give
some review to every Report and Recommendation)). Nevertheless, whether
timely objections are made or not, the district court may accept, not accept or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

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The court has reviewed the reasons presented by Judge Carlson for
recommending that the plaintiff’s motion for summary judgment be dismissed
without prejudice. Because the court agrees with the sound reasoning that led
Judge Carlson to the conclusions in his report and finds no clear error on the
face of the record, the court will adopt the report in its entirety. An appropriate
order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 31, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-0135-01.wpd

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