GRADILLAS COURT REPORTERS, INC. v. CHERRY BEKAERT, LLP et al

Filing 52

ORDER. The Court ADOPTS AND APPROVES IN FULL 45 Report and Recommendations; the Plaintiff's Motion for Partial Judgment on the Pleadings is DENIED, and the Defendants' affirmative defense of failure to mitigate damages is STRICKEN from the Defendant's Answer. Signed by Chief District Judge Rebecca Beach Smith on 4/2/18.(bpet)

FILED
UNITED

APR - 2 2018

STATES DISTRICT COURT

EASTERN DISTRICT

OF VIRGINIA

Norfolk Division

CLERK. U.S. DISTRICT COURT
NORFOLK. VA

GRADILLAS

COURT

REPORTERS,

INC.,

Plaintiff,

V.

ACTION NO:

CHERRY BEKAERT,

2:17cv597

LLP

and

SAEIA CRABTREE,
Defendants.

ORDER

This

Partial

matter

comes

Judgment

Plaintiff

on

on

before

the

the

Pleadings

January 18, 2018.

referred

to

a

February

8,

2018,

§ 636(b)(1)(B),

United

to

the

Federal

Rule

of

on

the

("Motion"),
No.

Magistrate

pursuant

and

conduct hearings,

States

ECF

court

37.

filed

Judge

by

the
was

by

of

Procedure

including evidentiary hearings,

Order

28

Motion.

and

ECF No.

recommendations
43.

for

the

of

U.S.C.

72(b),

to

if necessary,

and to submit to the undersigned proposed findings of fact,
applicable,

for

matter

The

provisions
Civil

Motion

disposition

of

if
the

The

United

Recommendation

States

Magistrate
on

(''R&R'')

Judge
2,

March

Magistrate Judge recommended that
denied,

and

(2)

the

Defendants'

(1)

filed

2018.

a

ECF

Report
No.

45.

and
The

the Plaintiff's Motion be

affirmative defense

of

failure

to mitigate damages be stricken from the Answer. R&R at 17-18.

By copy of the R&R, the parties were advised of their right
to

file

written objections

to

made by the Magistrate Judge.
Plaintiff

filed

March 27, 2018,
objections.

The

four

Id.

any

the

R&R.

responded

first

ECF

to

the

objection states:

U.S.C.

interpretation

dispositive

of

any

Pl.'s

SI

1.

Obj .

and recommendations

No.

46.

the
On

Plaintiff's

50.

Plaintiff's

to

to

Defendants

of caution and pursuant to 28

objects

findings

at 18. On March 14, 2018,

objections

the

ECF No.

the

issue

in

However,

of

§

''In an abundance

636(b) (1) (C) ,

Gradillas

ruling

or

finding

case

the

any

adverse

to

Gradillas."

courts

in

this

jurisdiction

as

and

elsewhere in the country have repeatedly stated that "[s]ection
636(b)(1)

does not countenance a

to

all

cover

contemplates

issues

that

a

addressed

form of generalized objection
by

the

Midqette,

478 F.3d 616,

Lee,

F.3d

411,

judge;

party's objection to a magistrate

report be specific and particularized.

337

magistrate

416

621-22

n.3

.

(4th Cir.

(4th

Cir.

.

it

judge's

United States v.

2007);

see also Page v.

2003)

(''[P] etitioner' s

failure to object to the magistrate judge's recommendation with

the

specificity

sufficient

basis

district court

932 F,2d 505,

2d 841,

required

.

upon
.

845

Rule

to

affirm

Howard v.

(6th Cir.

(W.D.

the

which

.

509

by

Va.

is,

standing

the

judgment

of

a
the

Sec^y Health & Human Servs.,

1991); Veney v. Astrue,

2008).

alone,

Therefore,

539 F. Supp.

general objections

to

the entirety of a magistrate judge's R&R need not be considered.
Howard,

932

''judicial

F.2d

at

509.

resources"

Such

and

objections

undermine

are

"the

effectiveness based on help from magistrate
478

F.3d at

a

''waste []"

district

of

court's

judges." Midqette,

622.

While the Plaintiff goes on to provide more particularized

objections,

the

without merit.

court

First,

finds

that

those

objections

are

also

the Plaintiff's argument that "[t]he 2012

Engagement Letter did not apply to any project after the one
Cherry,
upon

Bekaert & Holland L.L.P was hired for in 2012," rests

its

claim

that

the

parties

executed

another

contract,

"orally, by course of conduct," to govern the 2017 bid.

Pl.'s

Obj. SI 2; s^ Compl. 1 57, ECF No. 1-2. The Defendants deny the
existence of

obligation
SI 57,

such an oral

to

ECF No.

have
24;

contract,

submitted
Defs.'

the

Resp.

and by way thereof,

Plaintiff's

SI 2.

Because,

bid.
as

their

See Answer
alleged,

the

terms of the contract at issue were oral and thus evade proof by

exhibit

terms

or

of

attachment,

said

and because the

contract,

Defs.'

Resp.

Defendants

SI 2,

the

dispute

the

matter

is

inappropriate for determination in a motion for judgment on the
pleadings

under

e.g. ,

Drager v.

2014)

Federal
PLIVA

rA Rule

12(c)

Rule

USA,

of

Inc.,

motion

Civil
741

tests

Procedure

F.3d

only the

470,

12(c).

474

See,

(4th Cir.

sufficiency of

the

complaint and does not resolve . . . any disputes of fact.").
The

Plaintiff

also

objects

to

the

Magistrate

Judge's

determination that Virginia law governs the contract under the

applicable choice of law rules. Pl.'s Obj. SI 3. In so doing, the
Plaintiff

merely

contends

''^omission'

. . . for

that

purposes

of

the

location

of

the

choice

of

law

[the]

determination is a disputed issue of fact which has yet to be

fully briefed for determination." PI.'s Obj .

^ 3.

Plaintiff had ample opportunity to brief the

However,

the

issue before the

United States District Court for the District of Columbia,

where

it filed not only a motion objecting to the transfer to this
court,
motion.

but

also it

ECF Nos.

filed and

13,

17,

received reconsideration of that

21.

The Plaintiff has provided no facts

to cast doubt on the

conclusions reached by the District Court for the District of
Columbia, which were assessed and confirmed also by a Magistrate

Judge

of

this

undersigned.
at

4,

bid]

court

and

See R&R at 7;

ECF No.

21

now

on

de

Judge Beryl A.

(''In this case,

...

novo

review

by

the

Howell's Mem. & Order
no documents

were actually timely filed in Washington,

[for the

and the failure

to make a timely submission occurred in the Eastern District of
Virginia

The defendants are based in Virginia and

maintain no offices in Washington, while the Plaintiff is based
in California."). Accordingly, this objection has no merit.
Finally,
statement

Plaintiff

the

"objects"

that

"the

[c]ourt's

'[t]he specific acts include at least the company's

[Gradillas] failure to timely provide data necessary for Cherry
Bekaert's

work,'"

should

not

constitute

a

factual

finding

adverse to Gradillas. Pl.'s Obj. i 4. The Plaintiff's objection
relies on a misreading of the R&R. The statement to which the
Plaintiff refers does not constitute a finding of fact, but
rather identifies the specific allegation made by the Defendants
that place the Plaintiff on notice of the affirmative defense of
assumption of risk. R&R at 16. A finding of fact remains open as
to this allegation.
The court, having examined the objections by the Plaintiff
to

the

R&R

and

having

made

de

novo

findings

with

respect

thereto, does hereby ADOPT AND APPROVE IN FULL the findings and
recommendations
Magistrate

set

Judge

forth
filed

Plaintiff's Motion for
hereby

DENIED,

and

in

the

March
Partial

the

R&R

2,

of

2018.

the

United

Accordingly,

Judgment on the

Defendants'

States

affirmative

the

Pleadings is
defense

of

failure to mitigate damages is STRICKEN from the Defendants'
Answer.
5

t

i

.

r

The Clerk shall forward a copy of this Order to Counsel for
the parties.
IT

IS

Isl

SO ORDERED.

Rebecca Beach Smith

-m-

ChiefJudge

REBECCA BEACH SMITH
CHIEF JUDGE

April ^ , 2018