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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE STEVE NAPIER, Plaintiff, v. WAL-MART STORES EAST L.P., Defendant. ) ) ) ) ) ) ) ) ) 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.

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