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
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