Monroe Grocery, Inc et al v. Retailer Operation Division

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATIONS (1) Judge Schwabs Report, (Doc. 70), is ADOPTED IN ITS ENTIRETY;(2) The Governments motion for partial summary judgment, (Doc. 59), is DENIED. (3) This matter is REMANDED to Judge Schwab for further proceedings.; ORDER REFERRING CASE to Magistrate Judge Susan E. Schwab; denying 59 adopting 70 Report and Recommendations.Signed by Honorable Malachy E Mannion on 12/17/19. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MONROE GROCERY, INC. and
FRANCISCO TAVAREZ

:
:

Plaintiffs

CIVIL ACTION NO. 3:17-922
:

v.
:
UNITED STATES OF AMERICA,
GILDA TORRES, and SONNY
PERDUE

(MANNION, D.J.)
(SCHWAB, M.J.)

:
:

Defendants
:
ORDER
Presently before the court is the report and recommendation
(“Report”), (Doc. 70), of Magistrate Judge Susan E. Schwab, which
recommends that the Government’s motion for partial judgment on the
pleadings, (Doc. 59), be denied. No objections have been filed to the Report.
Based upon the court’s review of the record, Judge Schwab’s Report will be
ADOPTED IN ITS ENTIRETY, and the Government’s motion for partial
judgment on the pleadings will be DENIED.
On May 25, 2017, plaintiffs Monroe Grocery, Inc. (“Monroe”) and
Francisco Tavarez (“Tavarez”), (collectively “plaintiffs”), filed a pro se
complaint, (Doc. 1), against Retailer Operation Division, which filed a motion
to dismiss, (Doc. 6), on October 6, 2017. On October 27, 2017, Evan C.

Pappas entered his appearance on behalf of plaintiffs, (Doc. 10), and Andrew
Tapp filed a petition for admission pro hac vice to represent plaintiffs, (Doc.
11), which was granted by Judge Schwab on October 31, 2017, (Doc. 12).
On December 12, 2017, plaintiffs filed an amended complaint against
the United States of America (the “Government”), Gilda Torres (“Torres”),
and

Sonny Perdue

(“Perdue”),

(collectively “defendants”),

alleging

constitutional violations of equal protection and substantive due process.
(Doc. 15). Then, on December 26, 2017, the Government filed a motion to
dismiss plaintiffs’ amended complaint or, in the alternative, for summary
judgment. (Doc. 18). The Government filed a brief in support of its motion,
(Doc. 31), and statement of facts, (Doc. 32), on January 29, 2018. Plaintiffs
filed a brief in opposition to the Government’s motion on March 7, 2018,
(Doc. 38), and the Government filed a reply brief on March 21, 2018, (Doc.
39).
On May 3, 2018, Judge Schwab issued a report and recommendation,
which recommended that the Government’s motion to dismiss be granted in
part and denied in part. (Doc. 40). More specifically, Judge Schwab
recommended that plaintiffs’ claims seeking damages and their due process
claim seeking injunctive relief against defendants, in their official capacities,
be dismissed and that plaintiffs be granted leave to file a second amended
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complaint. (Doc. 40, at 31). This court adopted Judge Schwab’s report and
recommendation over the Government’s objections. (Doc. 50).
On March 6, 2019, plaintiffs filed a second amended complaint, (Doc.
54), again bringing due process and equal protection claims. The
Government filed an answer on March 18, 2019. (Doc. 56). Then, on June
26, 2019, the Government filed a motion for partial judgment on the
pleadings, (Doc. 59), to which plaintiffs filed a brief in opposition, (Doc. 65).
The Government filed a reply brief. (Doc. 66). Judge Schwab issued the
present Report on October 29, 2019, to which no party has filed objections.
The matter is now ripe for this court’s disposition.
When no objections are made to the report and recommendation of a
magistrate judge, 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’s note; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
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

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findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); M.D.Pa. L.R. 72.31.
Here, Judge Schwab recommends that the Government’s motion be
denied because its arguments as to why the complaint should be dismissed
do not sufficiently address the specific allegations in the complaint. Having
reviewed the Report of Judge Schwab, as well as the record and pleadings,
the court finds that Judge Schwab used proper reasoning and evidence to
support her Report and arrived at a legally-sound conclusion. Therefore, the
court adopts the Report of Judge Schwab as the opinion of this court.
Accordingly, IT IS HEREBY ORDERED THAT:
(1) Judge Schwab’s Report, (Doc. 70), is ADOPTED IN ITS
ENTIRETY;
(2) The Government’s motion for partial summary judgment, (Doc. 59),
is DENIED.
(3) This matter is REMANDED to Judge Schwab for further
proceedings.
s/

Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: December 17, 2019
17-922-01

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