BEHR v. FEDERAL HOME LOAN MORTGAGE CORP. et al

Filing 13

MEMORANDUM ORDER. It is hereby ORDERED that 4 Motion to Dismiss is DENIED. It is further ORDERED that 12 Report and Recommendation of Magistrate Judge Lenihan, dated July 29, 2015, is ADOPTED as the Opinion of the Court, as modified by this Order. Signed by Judge Mark R. Hornak on 9/1/15. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIDGET M. BEHR,

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Plaintiff,

v.
FEDERAL HOME LOAN
MORTGAGE CORP., eta/.,
Defendants.

Case No. 1:14-cv-291
Judge Mark R. Hornak
Magistrate Judge Lisa Pupo Lenihan
ECF No.4

MEMORANDUM ORDER

The Complaint in the above captioned case was filed in the Court of Common
Pleas of Erie County, Pennsylvania on or about October 16, 2014.

Thereafter, this

action was removed to this Court by Defendants on November 20, 2014, and was
subsequently referred to United States Magistrate Judge Lisa Pupo Lenihan for pretrial
proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1), and
Local Rules of Court 72.C and 72.D.
The Magistrate Judge's Report and Recommendation ("R&R") (ECF No. 12), filed
on July 29, 2015, recommended that Defendants' Motion to Dismiss (ECF No. 4) be
denied. Service was made on all counsel of record. The parties were informed that in
accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule
72.D.2 of the Local Rules of Court, that they had fourteen (14) days to file any
objections. No objections were filed to the Report and Recommendation.
After review of the pleadings and documents in the case, together with the
Report and Recommendation, the following Order is entered:

AND NOW, this 1st day of September, 2015,

IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (ECF No. 4) is
DENIED.

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 12)
of Magistrate Judge Lenihan, dated July 29, 2015, is adopted as the Opinion of the
Court, as modified by this Order1.

MARK R. HORNAK
United States Di~trict Judge
cc: All Counsel of Record
Via Electronic Mail

1 As

the R&R explains at its footnote 5, Count II of the Complaint essentially pleads the
substance of certain matters contained in certain of the Defendant's discovery responses in a
separate civil action. The Court therefore need not reach the question of whether those discovery
responses are to be considered public records which the Court may consider in resolving a
Motion to Dismiss. Further, the Court concludes that the R&R is correct in recommending that
the Motion to Dismiss on the basis of the Merrill Doctrine by denied without prejudice at this
juncture, in that Count II of the Complaint appears to set forth sufficient allegations that the
alleged impermissible conduct was authorized by the principal to the alleged agency relationship.
2