UNITED STATES OF AMERICA ex rel. DIANA SALVATORE et al v. FLEMING et al

Filing 84

MEMORANDUM ORDER. It is hereby ORDERED that Defendant Fleming's 37 Motion to Dismiss and Strike the Amended Complaint, or in the alternative, Motion for Summary Judgment, is DENIED. It is further ORDERED that Defendant Fleming shall file a responsive pleading to the Amended Complaint on or before 4/16/15. It is further ORDERED that 69 Report and Recommendation is adopted as the Opinion of the Court, as modified by this Order. Signed by Judge Mark R. Hornak on 3/25/15. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA ex reI.
DIANA SALVATORE, and DIANA M.
SALVATORE,
Plaintiffs,
v.

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MICHAEL FLEMING, TAYLOR
MANAGEMENT, INC., and DIXIE
REALTY, INC., d/b/a BUY-N-SELL
Real Estate,
Defendants.

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Civil Action No. 11-1157

United States District Judge
Mark R. Hornak
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER
Mark R. Hornak, United States District Judge

On September 15, 2011, the above captioned case was filed under seal in this Court, and
on October 27, 2011, it was referred to a Magistrate Judge for pretrial proceedings in accordance
with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules

n.c

and

n.D

of the Local

Rules of Court for Magistrate Judges.
On February 23, 2015, United States Magistrate Judge Cynthia Reed Eddy issued her
Report and Recommendation (ECF No. 69) in which she recommended denial of Defendant
Michael Fleming's Motion to Dismiss and Strike the Amended Complaint under Rules lOeb) and
12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, Motion for Summary
Judgment under Rule 56. (ECF No. 37). Defendant Fleming filed timely Objections to the

Report and Recommendation (ECF No. 75 )1, and both the Plaintiff and Defendant Dixie Realty,
Inc. filed timely Responses to such Objections, (ECF Nos. 78, 81)2.
After a de novo review of the pleadings and documents in the case, together with the
Report and Recommendation and Objections/ Responses thereto, the following Order is entered:
AND NOW, this 25th day of March, 2015, IT IS HEREBY ORDERED that Defendant

Fleming's Motion to Dismiss and Strike the Amended Complaint, or in the alternative, Motion
for Summary Judgment (ECF No. 37) is DENIED.
IT IS FURTHER ORDERED THAT Defendant Fleming shall file a responsive

pleading to the Amended Complaint on or before April 16, 2015.
IT IS FURTHER ORDERED THAT the Report and Recommendation is adopted as

the Opinion of the Court, as modified by this Order3 •

Mark R. Hornak
United States District Judge

cc: all ECF registered counsel

The Court concludes that because they were not presented to the Magistrate Judge in the first instance in its Motion
to Dismiss, the matters set forth by Fleming in its Objections as Sections 2A and 3A are not properly considered at
this juncture. Whether they may be later addressed in a Motion for Summary Judgment is a matter that must be
presented to the Magistrate Judge in the first instance.
I

The Court adopts the Report and Recommendation as to the matters raised by both Fleming and Dixie as to the
Plaintiffs compliance with Fed. R. Civ. P. 10(b) for the reasons set forth by the Magistrate Judge, and because the
discovery process will provide each Defendant with an appropriate opportunity to glean any further or necessary
parsing and precision as to the Plaintiffs claims as to each of them, jointly or severally.
2

3 The Court deletes the reference to "Tucci, 2012 WL 2190145 at *2" at page 13 of the Report and Recommendation
and replaces it with "Ruddy v. United States, 2012 WL 511487 at *2 (M.D. Pa. Feb. 15, 2012)" and modifies the
citation to United States ex reI Laird v. Lockheed Martin Engineering & Science Services Co. at page 11 of the
Report and Recommendation to read" 336 F. 3d 346,357-360 (5 th Cir. 2003), abrogated on other grounds by
Rockwell Int '[ Corp. v. United Slates, 549 U.S. 457 (2007).

2