Hall v. The Kroger Co.

Filing 37

ORDER: Accordingly, the Court rules as follows: (1) The R&R 30 is hereby ACCEPTED and APPROVED, and Plaintiff's Objections 33 thereto are hereby OVERRULED; (2) The Motion to Dismiss filed by The Kroger Co. 5 is hereby DENIED AS MOOT; (3) P laintiff's Motion for Summary Judgment 13 is hereby DENIED; (4) The Motions to Dismiss the Amended Complaint filed by Defendants The Kroger Company 24 and the United Food and Commercial Workers, Local 1995 26 are hereby GRANTED; (5) This c ase is hereby DISMISSED WITH PREJUDICE; and (6) The Clerk of this Court shall enter Judgment in a separate document in accordance with Federal Rule of Civil Procedure 58. It is SO ORDERED. Signed by District Judge Kevin H. Sharp on 7/10/12. (xc:Pro se party by regular and certified mail.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LEROY CALVIN HALL, SR.
Plaintiff,
v.
THE KROGER CO.,
Defendant.

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No. 3:11-00577
Judge Sharp

ORDER
Magistrate Judge Griffin issued a Report and Recommendation (“R & R”) (Docket No. 30)
in this case on February 28, 2012, recom
mending that (1) the Motion to Dism filed by The Kroger
iss
Co. (Docket Entry No. 5) be deniedas moot in light of Plaintiff’s filing of an Amended Complaint;
(2) Plaintiff’s Motion for Summary Judgment (Docket Entry No. 13) be denied; (3) Defendants’
Motions to Dismiss Plaintiff’s Amended Complaint (Docket Nos. 24 & 26) be denied; and (4) this
case be dismissed with prejudice for failure to st ate a claim. At the conclusion of the R & R,
Magistrate Judge Griffin specificallyadvised Plaintiff that he had f urteen days from service within
o
which to file objections, and that any objections m “state with particularity the specific portions
ust
of [the R & R] to which objection is made.” (Docket No. 30 at 7).
From all outward appearances, Plaintiff did not file timely objections,1 and the general rule
is that the failure to do so waives review. See, Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d
452, 458 (6th Cir. 2012). Even if Plaintiff’s objectionsare deemed timely, Plaintiff does not specify
The docket indicates that the Clerk’ office sent the R & R by certified mail to Plaintiff at his listed
s
address on the day it was entered, and adelivery attempt was made the following day. For unknown reasons,
however, the letter was returned as unclaimed on March 21, 2012, yet the very next day, Plaintiff filed his
objections.
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the portions of the R & R t o which he objects, a nd the failure to make specific objections also
generally waives review. See, Zimmerman v. Cason, 345 Fed. Appx. 228, 230 (6th Cir. 2009).
Regardless, the Court has reviewed Pla intiff’s Amended Complaint, and agrees with
Magistrate Judge Griffin that, even construed in Plaintiff’s favor, the Amended Complaint fails to
meet the pleading and plausibility requirements of Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
and Bell Atlantic Corp. v. Twom 550 U.S. 544, 555 (2007). As Magi
bly,
strate Judge Griffin points
out, the Amended Complaint fails to identify the legal claims asserted, and “fails to set out distinct
and understandable factual allegations which clearly show the factual basis for the l

awsuit.”

(Docket No. 30 at 5). Further, to the extent Plaintiff appears to be claiming that his grievance was
settled without his consent, the law is clear that a union breaches its duty “when its conduct toward
an employee is arbitrary, discriminatory, or in bad faith,” but that duty is not breached “‘m erely
because [a union] settled a grievance short of arbit ration,’” and this is so even where the union
“fail[s] to consult with a worker before settling his grievance.” Courie v. Alcoa Wheel & Forged
Prod., Inc., 577 F.3d 625, 631 (6th Cir. 2009) (quoting, Vaca v. Sipes, 386 U.S. 171, 177 (1967)).
Accordingly, the Court rules as follows:
(1) The R &R (Docket No. 30) is hereby ACCEPTED and APPROVED, and Plaintiff’s
Objections (Docket No. 33) thereto are hereby OVERRULED;
(2) The Motion to Dism filed by The KrogerCo. (Docket Entry No. 5) is hereby DENIED
iss
AS MOOT;
(3) Plaintiff’s Motion for Summary Judgment (Docket Entry No. 13) is hereby DENIED;
(4) The Motions to Dism iss the Am ended Complaint filed by De fendants The Kroger
Company (Docket No. 24) and the United Food and Com
mercial Workers, Local 1995 (Docket No.

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26) are hereby GRANTED;
(5) This case is hereby DISMISSED WITH PREJUDICE; and
(6) The Clerk of this Court shall enter Judgment in a separate document in accordance with
Federal Rule of Civil Procedure 58.
It is SO ORDERED.
____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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