Ahneman v. Federal Express Corporation

Filing 9

ORDER Adopting Report and Recommendations re DE 7 Motion to Dismiss and Granting DE 7 Motion to Dismiss signed by Judge John T. Fowlkes, Jr. on 2/15/2017. (Fowlkes, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PATRICIA M. AHNEMAN, JR.,
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
Defendant.

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No. 2:16-cv-02422-JTF-tmp

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION

Before the Court is Defendant’s Motion to Dismiss filed on November 4, 2016. (ECF
No. 7). This case was referred to the United States Magistrate Judge for management and for all
pretrial matters for determination and/or report and recommendation as appropriate. (Admin.
Order 2013-05, April 29, 2013). On December 27, 2016, the Magistrate Judge issued his Report
and Recommendation that Defendant’s Motion to Dismiss be granted. (ECF No. 12). To date,
no objections have been filed.
After reviewing de novo the Magistrate Judge’s Report and Recommendation,
Defendants’ Motion, and the entire record, the Court hereby ADOPTS the Magistrate Judge’s
Report and Recommendation.
FINDINGS OF FACT
This Court adopts the Magistrate Judge’s proposed findings of fact in this case. See (ECF
No. 8).

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LEGAL STANDARD
A. Standard for District Court’s Review of a Report and Recommendation
The district court has the authority to refer certain pre-trial matters to a magistrate judge
for resolution. 28 U.S.C. § 636(b); Callier v. Gray, 167 F.3d 977, 980 (6th Cir. 1999). These
referrals may include non-dispositive pretrial matters, such as a motion to compel or a motion for
a protective order concerning discovery. 28 U.S.C. § 636(b)(1)(A). The district court has
appellate jurisdiction over any decisions the magistrate judge issues pursuant to such a referral.
Fed. R. Civ. P. 72. The referrals may also include dispositive matters such as a motion for
summary judgment or a motion for injunctive relief. 28 U.S.C. § 636(b)(1)(B). When a
dispositive matter is referred, the magistrate judge’s duty is to issue proposed findings of fact and
recommendations for disposition, which the district court may adopt or not. “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
The standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. If the magistrate judge issues a non-dispositive
pretrial order, the district 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). However, if the
magistrate judge order was issued in response to a dispositive motion, the district 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 Fed. App’x.
308, 311, 2003 WL 21321184 *2 (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.”).

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B. Standard for Motion To Dismiss
When assessing a plaintiff’s claim at the Fed. R. Civ. P. 12 (b)(6) motion to dismiss
stage, the Sixth Circuit has stated that a complaint must allege sufficient facts to state a plausible
claim for relief, and that a reviewing court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012). “Pro se complaints are held to a less stringent standard than pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se litigants “are
not exempt from the requirements of the Federal Rules of Civil Procedure.” Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir.
2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading.”)
(internal quotation marks omitted).
ANALYSIS
The Magistrate Judge recommends that Plaintiff’s Complaint be dismissed without
prejudice. Rule 4 of the Federal Rules of Civil Procedure requires the Plaintiff to serve the
Defendant with a properly issued summons and a copy of the complaint within 90 days of filing
the complaint, absent a showing by the Plaintiff of good cause for delay. See Fed. R. Civ. P.
4(c)(1) & 4(m). The court-imposed December 15, 2016 deadline, which provided Plaintiff an
additional 42 days, has passed. To date, Plaintiff still has not served Defendant. Under these
circumstances, the Magistrate Judge states that the Court may sua sponte dismiss Plaintiff’s
complaint without prejudice. See Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 812-13 (6th Cir.
2004) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)). Additionally, the Magistrate
Judge states that Defendant has filed a Motion to Dismiss requesting identical relief on the same
grounds. See (ECF No. 7).

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CONCLUSION
For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss is Granted, and
Plaintiff’s Complaint is dismissed without prejudice.
IT IS SO ORDERED on this 15th day of February, 2017.

s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge

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