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).

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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 3

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