Harman v. Tobash et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 5/11/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES HARMAN,

:

Plaintiff

:
:

v.
KATRINA TOBASH and
BB&T BANK,

CIVIL ACTION NO. 3:17-0135
(MANNION, J.)

:
:

Defendants
:
MEMORANDUM
Pending before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that the defendants’ motion to dismiss be
granted. (Doc. 14). 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 the instant 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 argued that he was 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 his initial report in this action, in which he recommended that the

plaintiff’s motion for summary judgment be dismissed without prejudice
because the plaintiff’s motion rested on an erroneous legal and factual
premise. Because the defendants had pending a motion to dismiss the
plaintiff’s claims, Judge Carlson correctly provided that they were not required
to submit an answer which admitted or denied the factual allegations
presented in the plaintiff’s complaint. It would only be after the defendants’
motion to dismiss is resolved, and if the complaint is not dismissed, that the
defendants would 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
recommended that the plaintiff’s motion for summary judgment be dismissed
without prejudice. No objections were filed to Judge Carlson’s report. By
memorandum and order dated May 10, 2017, the court adopted Judge
Carlson’s report in its entirety and the matter was remanded to Judge Carlson
for further proceedings.
By way of the court’s Standing Practice Order issued on January 25,
2017, the plaintiff was notified of his duty to respond to defense motions like
the defendants’ motion to dismiss which is currently pending. Despite this, the
plaintiff never responded to the defendants’ motion to dismiss. As such, on
April 3, 2017, Judge Carlson entered an order which provided the plaintiff with
a second notice of his duty to respond to the defendants’ motion to dismiss.
(Doc. 13). The plaintiff was given until April 14, 2017, to do so, and was

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informed of the provisions of Local Rule 7.6 which imposes an affirmative duty
upon the plaintiff to respond to such motions. The plaintiff was forewarned
that his failure to respond may result in the defendants’ motion being deemed
unopposed and granted.
As of April 19, 2017, the plaintiff had failed to comply with Judge
Carlson’s direction and respond to the defendants’ motion to dismiss.
Accordingly, on that date, Judge Carlson issued the pending report in which
he recommends that the defendants’ motion to dismiss be granted. Initially,
Judge Carlson recommends that, under Local Rule 7.6, the plaintiff should be
deemed to concur in the motion to dismiss since he has failed to timely
oppose the motion or otherwise litigate this matter. Judge Carlson notes that
the plaintiff was given specific direction to comply with the Local Rules and
failed to do so. As such, Judge Carlson correctly points out that the Local
Rule can be applied to grant the defendants’ motion to dismiss without an
analysis of the complaint’s sufficiency. See Stackhouse v. Mazurkiewicz, 951
F.2d 29, 30 (1991). In the alternative, Judge Carlson recommends that
dismissal is warranted under Fed.R.Civ.P. 41 for failure to prosecute. In so
recommending, Judge Carlson reviewed each of the factors set forth in Poulis
v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). He
determined that each of the six factors weighs in favor of granting the
defendants’ motion to dismiss. With the time for doing so having passed, no

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party has filed objections to Judge Carlson’s report and recommendation.
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.
The court has reviewed the reasons presented by Judge Carlson for
recommending that the defendants’ motion to dismiss be granted. 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: May 11, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-0135-02.wpd

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