JTH Tax, Inc. v. Hines

Filing 84

ORDER re: 66 Motion to Dismiss; 80 Report and Recommendations. The court does hereby OVERRULE the Defendant's Objections, and ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the R&R of the United States Magistrat e Judge. Plaintiff's Motion is GRANTED without prejudice to the Defendant filing a second amended counterclaim within twenty-one days of the entry of this Order. IT IS SO ORDERED. Signed by Chief District Judge Rebecca Beach Smith and filed on 8/24/17. Copies distributed to all parties 8/24/17.(ldab, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JTH TAX,

INC. d/b/a

LIBERTY TAX. SERVICE,
Plaintiff,
CIVIL ACTION NO.

V.

2:15cv558

CHARLES HINES,
Defendant.
ORDER

This matter comes before the court on the Motion to Dismiss

("Motion")

Inc.

and Memorandum in Support filed by Plaintiff JTH Tax,

("JTH

Defendant,

Tax")

on

Charles

Opposition on June

April
Hines

16,

14,

2017.

("Mines"),

2017,

ECF No.

ECF

Nos.

filed

a

77,

66,

67.

Memorandum

and JTH

The
in

Tax filed a

Reply on June 22, 2017. ECF No. 78.

On

May

20,

2017,

Memorandum in Support
J.
and

Krask,

this

court

referred

to United States Magistrate

Motion

and

Judge Robert

pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)

Federal Rule of Civil

Procedure 72(b),

to conduct hearings,

including evidentiary hearings,

if necessary,

the

proposed

undersigned

applicable,
Motion.

the

and

ECF No.

district

judge

recommendations
68.

for

the

and

findings

to

submit

to

fact,

if

of

disposition

of

the

The

Magistrate

("R&R")

on

July

Judge

19,

filed

the

Report

ECF

No.

80.

2017.

and

The

Recommendation

Magistrate

recommended granting the Motion without prejudice.

Judge

R&R at 1.

By

copy of the R&R, the parties were advised of their right to file
written objections

to the

the Magistrate Judge.

See

findings
id.

at

and

11.

recommendations made by

On August

3,

2017,

Hines

filed an Objection to the R&R. ECF No. 81.
I.

Pursuant

Procedure,

entirety,
of

the

to

the

Rule

Fed. R. Civ.

court,

to

which

§

recommit

the

of

having

the

Federal

reviewed

the

Rules

of

record

Civil

in

its

novo determination of those portions

the

P. 72(b).

in whole or in part,
or

72(b)

shall make a ^

R&R

LEGAL STAMDABD

Plaintiff

has

specifically

The court may accept,

objected.

reject, or modify,

the recommendation of the magistrate judge,

matter

to

him

with

instructions.

28

U.S.C.

636(b)(1).
II.

Plaintiff's

alleges
Rules

that

Tax's

the

of Civil

In the R&R,

Motion

to

DISCUSSION

Dismiss

counterclaim

Procedure

8(a),

the

failed

to

8(d)(1),

dismiss

the

amended

without prejudice to Hines filing a

comply

counterclaim

with

and 10(b).

the Magistrate Judge agrees,

"motion to

amended

Federal

ECF No.

66.

recommending that

JTH

[counterclaim]

be

granted

second amended counterclaim

in an effort to comply with Rules 8(a)(2),

8(d)(1),

and 10(b)."

R&R at 11. The Magistrate Judge further reconunends that Mines be

required

to

file

any

second

amended

counterclaim

within

twenty-one days from the court's order regarding the R&R and JTH
Tax's Motion.

Id.

In the Objection to

the

R&R,

Mines

opposes

the Magistrate

Judge's recommendation that Plaintiff's Motion be granted.
at

8.

Instead,

denied.

Mines

Mowever,

recommendation,

argues

Mines
to

the

that

agrees
extent

JTM

with
that

Tax's
the

Motion

should

Magistrate

filing

a

Obj.

second

be

Judge's
amended

counterclaim, "is the proper way to proceed." Id. at 21.

Having reviewed the matter ^
the

Magistrate

Dismiss the

Judge's

novo,

recommendation,

the court agrees with
that

the

Motion

to

counterclaim be granted without prejudice to Mines

filing a second amended counterclaim in order to comply with the
Federal Rules of Civil Procedure,
Judge.

R&R

at

4.

as explained by the Magistrate

Accordingly,

Mines'

Objection

is

hereby

OVERRULED.

III.

The court,

having examined the Objections to the R&R filed

by the Defendant,
thereto,

does

CONCLUSION

and having made ^

hereby

ADOPT AND APPROVE

OVERRULE

IN FULL

the

the

novo findings with respect
Defendant's

findings

and

Objections,

recommendations

forth in the R&R of the United States Magistrate Judge,
July

19,

2017.

ECF

No.

80.

Accordingly,

Plaintiff's

and
set

filed on
Motion

is

GRANTED

without

prejudice

to

the

Defendant

filing

a

second

amended counterclaim within twenty-one days of the entry of this
Order.

The Clerk is DIRECTED to send a copy of this Order to all
parties.
IT IS

SO ORDERED.

Is!

Rebecca Beach Smith
Chief Judge
REBECCA BEACH SMITH
CHIEF JUDGE

August 24, 2017