Howell v. Smith & Nephew

Filing 51

ORDER adopting 50 Report and Recommendations and granting 46 Motion to Dismiss. Signed by Judge S. Thomas Anderson on 7/25/13. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
KATHY HOWELL,

)
)
Plaintiff,
)
)
v.
)
No. 12-2059-STA-tmp
)
SMITH & NEPHEW,
)
)
Defendant.
)
______________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
______________________________________________________________________________
Before the Court is Defendant Smith & Nephew’s Motion to Dismiss (D.E. # 46) filed on
April 8, 2013, and the United States Magistrate Judge’ Report and Recommendation that
Defendant’s Motion to Dismiss be granted (D.E. # 50) filed on June 7, 2013. A bench trial in this
matter is currently set for September 30, 2013.
Defendant seeks dismissal of Plaintiff’s complaint under Rule 37(b)(2)(A) as a discovery
sanction. According to the Motion to Dismiss, Plaintiff has failed to respond to Defendant’s
discovery requests, even after the Magistrate Judge’s granted Defendant’s motion to compel Plaintiff
to submit discovery responses. Not only did Plaintiff fail to comply with the Magistrate Judge’s
order, Plaintiff also failed to file a response to Defendant’s Motion to Dismiss within the time
permitted. Thereafter, the Magistrate Judge entered a show cause order, directing Plaintiff to file a
response to the Motion within fourteen (14) days. The Magistrate Judge specifically warned Plaintiff
that her failure to respond would result in a recommendation to the Court that Plaintiff’s case be

1

dismissed. To date Plaintiff has not responded to the show cause order. The Magistrate Judge issued
his Report and Recommendation that Defendant’s Motion to Dismiss be granted.
Pursuant to Rule 72(b)(2) and 28 U.S.C. § 636(b)(1)(C), objections to the Magistrate Judge’s
Report and Recommendation were due within fourteen (14) days of service of the Report, making
the objections due no later than June 24, 2013.1 Neither party has filed objections within the time
permitted. Having reviewed the Magistrate Judge’s Report and Recommendation de novo, the
parties’ briefs, and the entire record of the proceeding, the Court hereby ADOPTS the Magistrate
Judge’s Report. Defendant’s Motion to Dismiss is GRANTED, and Plaintiff’s complaint is
dismissed with prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: July 25, 2013.

1

The parties receive the benefit of three additional days under Rule 6(d) of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 6(d).
2