Murphy v. Enhanced Recovery Company, LLC

Filing 56

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46 ]. The Court ADOPTS the Report & Recommendation [ECF No. 46 ]. The Motion to Dismiss is GRANTED [ECF No. 28 ] and the Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff's "Motion t o Stop Collection of Fees and to Reimburse Collected Fees" is DENIED AS MOOT. [ECF No. 48 ]. Signed by District Judge Thomas S. Kleeh on 3/31/2021. (Mailed to PS Plaintiff via CM, RRR.)(wrr) (Additional attachment(s) added on 3/31/2021: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
MICHAEL MURPHY,
Plaintiff,
v.

Civ. Action No. 1:20-CV-11
(Kleeh)

JASON DAVIS,
President of Enhanced Recovery
Company, LLC,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
On January 13, 2020, the pro se Plaintiff, Michael Murphy
(“Plaintiff”), filed a Complaint alleging violations of the Fair
Debt Collections Practices Act (“FDCPA”) against Defendant Jason
Davis (“Defendant”). Compl., ECF No. 1. On May 26, 2020, Defendant
filed a Motion to Dismiss for Lack of Personal Jurisdiction. [ECF
No. 28]. Plaintiff filed a response in opposition to the Motion,
and Defendant filed his reply brief. [ECF Nos. 42, 43].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi for initial review. On January 5, 2021, the Magistrate Judge
entered

a

Report

and

Recommendation

(“R&R”)

[ECF

No.

46],

recommending that the Court grant the Motion to Dismiss [ECF No.
28] and that Plaintiff’s Complaint be dismissed without prejudice.
The R&R also informed the parties regarding their right to

MURPHY V. DAVIS

1:20-CV-11

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
file specific written objections to the magistrate judge’s report
and recommendation. Under Local Rule 12 of the Local Rules of
Prisoner Litigation Procedure of the Northern District of West
Virginia,

“[a]ny

party

may

object

to

a

magistrate

judge’s

recommended disposition by filing and serving written objections
within fourteen (14) calendar days after being served with a copy
of the magistrate judge’s recommended disposition.” LR PL P 12.
Therefore, parties had fourteen (14) calendar days from the date
of

service

of

the

R&R

to

file

“specific

written

objections,

identifying the portions of the Report and Recommendation to which
objection is made, and the basis of such objection.” The R&R
further

warned

them

that

the

“[f]ailure

to

file

written

objections . . . shall constitute a waiver of de novo review by
the District Court and a waiver of appellate review by the Circuit
Court of Appeals.” The docket reflects that Plaintiff accepted
service of the R&R on September 14, 2020. [ECF No. 47]. To date,
no objections to the R&R have been filed.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,
without

explanation,

any

of

the

magistrate

judge’s

recommendations” to which there are no objections. Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
2

MURPHY V. DAVIS

1:20-CV-11

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will
uphold portions of a recommendation to which no objection has been
made unless they are clearly erroneous. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Because

no

party

has

objected,

the

Court

is

under

no

obligation to conduct a de novo review. Accordingly, the Court
reviewed the R&R for clear error. Upon careful review, and finding
no clear error, the Court ADOPTS the R&R [ECF No. 46]. The Motion
to Dismiss is GRANTED [ECF No. 28] and the Complaint is DISMISSED
WITHOUT PREJUDICE. Plaintiff’s “Motion to Stop Collection of Fees
and to Reimburse Collected Fees” is DENIED AS MOOT. [ECF No. 48].
The Court DIRECTS the Clerk to enter judgment in favor of the
Defendant as it relates to the remaining claims.

The Court ORDERS

that this action be DISMISSED WITHOUT PREJUDICE and STRICKEN from
the docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record via electronic means and to the pro se Plaintiff
via certified mail, return receipt requested.
DATED: March 31, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

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