Cook v. Blazer et al

Filing 93

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 82 Motion to Dismiss and/or 82 Motion to Change Venue. Signed by Chief Judge Michael F. Urbanski on 8/8/17. (sas)

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
F!LED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
RACHAEL L. COOK,
Plaintiff,

v.
JOHN RICHARD BLAZER, et al.,
Defendants.

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Civil Action No. 7:15-cv-456

By:

.Michael F. Urbanski

Chief United States District Judge

ORDER
This matter is before the court on defendant Scott McQuate's motion to dismiss
plaintiff's complaint and/or motion to transfer venue. ECF No. 82. This motion was
referred to United States Magistrate Judge RobertS. Ballou for report and recommendation.
On July 17, 2017, Judge Ballou issued a report and recommendation, recommending that
McQuate's motion be denied. ECF No. 92. As to dismissal, Judge Ballou found that
McQuate's first argument-that the court did not have personal jurisdiction over him-had
already been raised in a previous motion to dismiss, which the court denied. Id. at 2; ~
ECF Nos. 13, 56. Thus, Judge Ballou found that ''McQuate ha[d] raised no new arguments,
and there [was] no need to revisit the issue." ECF No. 92, at 3. To the extent McQuate
argued that dismissal was appropriate because he never received service of process, Judge
Ballou found that argument to be "unfounded," given that McQuate presented no evidence
or argument that would call into question the validity of the service made to the Secretary of
the Commonwealth of Virginia as McQuate's statutory agent. Id. at 3.

Likewise, Judge Ballou rejected McQuate's arguments for transfer of venue, finding
that the factors relevant to

discr~tionary

transfer-convenience of the parties and witnesses

and the interests of justice-militated against transfer. Id. at 4. Moreover, McQuate has
previously filed a motion under Rule 12, which was resolved by the court, thereby waiving
any subsequent motion to transfer venue. Id. As such, Judge Ballou recommended that
McQuate's motion to transfer be denied as well.
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, all parties were given
fourteen days-until July 31, 2017-to file objections to the report and recommendation.
Neither McQuate nor any other party chose to do so. It is well-settled that "[a]ny part of [a]
magistrate judge's disposition [on report and recommendation] that has not been properly
objected to is reviewed for, at most, clear error." Veney v. Astrue, 539 F. Supp. 2d 841, 844
(W.D. Va. 2008) (citing Fed, R. Civ. P. 72(b) advisory committee's notes, and Thomas v.
Arn, 474 U.S. 140, 149-52 (1985)). The court has reviewed Judge Ballou's report and
recommendation, and finds no clear error. Accordingly, the report and recommendation,
ECF No. 92, is ADOPTED in full, and McQuate's motion to dismiss plaintiffs complaint
and/ or motion to transfer venue, ECF No. 82, is DENIED.
It is SO ORDERED.
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Michael F. Urbanski
Chief Urlited States-District Judge- ·

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