Napier v. Wal-Mart Stores East L.P. (JRG1)

Filing 43

ORDER: After careful de novo consideration of the record as a whole, and after careful consideration of the Report and Recommendation of the United States Magistrate Judge, and for the reasons set out in that Report and Recommendat ion which are incorporated by reference herein, it is hereby ORDERED that Wal-Mart's objections are OVERRULED, the Report and Recommendation is ADOPTED and APPROVED, [Doc. 34], and the "Motion for Leave to Amend/Supplement Its Answer to the Intervening Complaint by Borden Dairy Company of Kentucky, LLC," [Doc. 22], is DENIED. Signed by District Judge J Ronnie Greer on 07/25/2017. (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

STEVE NAPIER,
Plaintiff,
v.
WAL-MART STORES EAST L.P.,
Defendant.

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No. 2:16-CV-108

ORDER
This matter is before the Court to consider the Report and Recommendation of the United
States Magistrate Judge dated February 10, 2017, [Doc. 34].

In that Report and

Recommendation, the Magistrate Judge recommends that Wal-Mart Stores East, L.P.’s (“WalMart”) “Motion for Leave to Amend/Supplement Its Answer to the Intervening Complaint
by Borden Dairy Company of Kentucky, LLC,” [Doc. 22], be denied.

Wal-Mart has

filed objections to the Report and Recommendation, [Doc. 38]. Borden Dairy Company of
Kentucky, LLC (“Borden”) has responded, [Doc. 40]. The matter is ripe for review.
After careful de novo consideration of the record as a whole,1 and after careful
consideration of the Report and Recommendation of the United States Magistrate Judge, and for

1

Wal-Mart did not address the standard of review. Borden argues that this is a non-dispositive pretrial order, and,
thus, the Court should defer to that order unless it is “found to be clearly erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a). Of course, if the Court considers the magistrate judge’s order as issued in
response to a dispositive motion, then this Court should engage in de novo review of all portions of the order to
which specific written objections have been made. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Baker v.
Peterson, 67 F. App’x 308, 311 (6th Cir. 2003) (“A district court normally applies a ‘clearly erroneous or contrary to
law’ standard of review for non[-]dispositive preliminary measures. A district court must review dispositive motions
under the de novo standard.”). This Court notes that under either standard, the objections would be overruled. Thus,
this Court applied the de novo standard.

the reasons set out in that Report and Recommendation which are incorporated by reference
herein, it is hereby ORDERED that Wal-Mart’s objections are OVERRULED, the Report and
Recommendation is ADOPTED and APPROVED, [Doc. 34], and the “Motion for Leave to
Amend/Supplement Its Answer to the Intervening Complaint by Borden Dairy Company
of Kentucky, LLC,” [Doc. 22], is DENIED.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

In addition, Borden is correct in that Wal-Mart raised three arguments for the first time in its objections to
the Report and Recommendation. “[A]bsent compelling reasons,” parties may not “raise at the district court stage
new arguments or issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1
(6th Cir. 2000) (citing United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)); see also Marshall v. Chater, 75
F.3d 1421, 1426–27 (10th Cir. 1996) (“[I]ssues raised for the first time in the objections to magistrate judge's report
and recommendation are deemed waived.”). The Court finds no such compelling reasons here. As such, Wal-Mart
has waived those arguments. Despite waiver, this Court analyzed those arguments and has found them without
merit.