KISANO TRADE & INVEST LIMITED et al v. LEMSTER et al

Filing 29

ORDER denying 4 Motion to Dismiss; denying 4 Motion to Strike ; denying 4 Motion to Sever, and adopting the Magistrate Judge's 24 Report and Recommendation as the opinion of this Court, as more fully stated in the Order. Signed by Judge Cathy Bissoon on 11/17/2011. (dad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KISANO TRADE & INVEST LIMITED,
et al.,
Plaintiffs,
v.
DEV LEMSTER, et al.,
Defendants.

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Civil Action No. 11-852
Judge Cathy Bissoon
Magistrate Judge Robert Mitchell

MEMORANDUM ORDER
Kisano Trade & Invest Limited, and Trasteco Ltd. (“Plaintiffs”) bring the instant cause of
action under the Racketeer Influenced Corrupt Organizations Act (“RICO”),
18 U.S.C. §§ 1961-68, and state law against Dev Lemster and Steel Equipment Corp.
(“Defendants”). On June 18, 2011, Defendants filed a motion to dismiss, or, in the alternative, to
strike portions of the complaint and sever Plaintiffs’ claims against them. (Doc. 4). Plaintiffs
responded in opposition to this motion on August 9, 2011. (Doc. 10). Defendants filed a reply
brief on August 23, 2011. (Doc. 11-12). Plaintiffs, with leave of Court, filed a sur-reply brief on
August 29, 2011. (Doc. 14).
This matter was referred to a United States Magistrate Judge for pretrial proceedings in
accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the
Local Rules for Magistrate Judges. The magistrate judge issued a report and recommendation on
September 27, 2011, recommending that Defendants’ motion to dismiss, or, in the alternative, to
strike and sever, be denied. (Doc. 24). Defendants file objections to the report on
October 14, 2011. (Doc. 25). Plaintiffs responded to the objections on October 25, 2011. (Doc.
26).

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After de novo review1 of the pleadings and documents in the case, together with the
report and recommendation (Doc. 24), Defendants’ objections thereto (Doc. 25), and Plaintiffs’
response (Doc. 26), the following ORDER is entered:
AND NOW, this 17th day of November, 2011,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss, or, in the alternative, to
strike and sever (Doc. 4), is DENIED.
IT IS FURTHER ORDERED that the magistrate judge’s report and recommendation
(Doc. 24) is adopted as the opinion of this Court.
BY THE COURT:
s\Cathy Bissoon
CATHY BISSOON
UNITED STATES DISTRICT JUDGE
cc (via ECF email notification):
All Counsel of Record

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The portions of Defendants’ motion relating to striking parts of the complaint and severing
Plaintiffs’ claims are, strictly speaking, non-dispositive. Accordingly, it would have been well
within the magistrate judge’s authority – although stylistically awkward – to have addressed
them in a separate order, instead of in the report. See 28 U.S.C § 636(b)(1)(A). The standard of
review regarding Defendants’ objections to such an order would have been whether the
magistrate judge’s findings were clearly erroneous or contrary to law. Id. However, as the
magistrate judge’s conclusions regarding this matter came in the form of a report, and not an
order, this Court is bound to conduct de novo review. 28 U.S.C. § 636(b)(1).
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