Deakins, Sr. et al v. Pack et al

Filing 176

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 170 PROPOSED FINDINGS AND RECOMMENDATION by Magistrate Judge VanDervort and ORDERS the 142 Motion to Dismiss, or in the alternative, to Quash, filed by Robin Mavin and D. W. Miller be GRANT ED in part and DENIED in part. The Defendants' Motion is denied to the extent they move to dismiss and granted to the extent they seek to quash service. The Court further ORDERS that the time for service of Defendants Maven and Miller be EXTENDED until 09/01/2012. Signed by Judge Irene C. Berger on 7/19/2012. (cc: attys; any unrepresented party) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION

HARRY E. DEAKINS, SR., et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 1:10-cv-01396

T. S. PACK, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

By Standing Order (Document 4), entered on December 21, 2010, this action was referred to
the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of
proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
On May 11, 2012, Defendants Robin Mavin and D.W. Miller filed their Motion to Dismiss or, in the
Alternative, Motion to Quash Service (Document 142). On June 15, 2012, Plaintiffs filed their
response. (Document 163). On June 28, 2012, the Magistrate Judge submitted Proposed Findings
and Recommendation (“PF&R”) (Document 170), wherein it is recommended that this Court deny
Defendants’ Motion to Dismiss as premature and grant Defendants’ Motion to Quash Plaintiffs’
attempted service occurring on April 20, 2012. The Magistrate Judge also found good cause to
extend the time for service of Defendants Maven and Miller until September 1, 2012. (Id.)
The Court is not required to review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the findings or recommendation to which
no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely
objections constitutes a waiver of de novo review and the Petitioner's right to appeal this Court's

Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct
a de novo review when a party “makes general and conclusory objections that do not direct the Court
to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R were due by July 16, 2012. To date, no
party has filed objections. However, based on subsequent filings, it appears both parties agree with
the substance of the PF&R. (See Documents 173 and 174).
Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation
of the Magistrate Judge as contained in the Proposed Findings and Recommendation (Document
170), and ORDERS that the Motion to Dismiss or, in the Alternative, Motion to Quash Service, By
Robin Mavin and D.W. Miller (Document 142) be GRANTED in part and DENIED in part.
Specifically, the Defendants’ Motion is denied to the extent they move to dismiss and granted to the
extent they seek to quash service. The Court further ORDERS that the time for service of Defendants
Maven and Miller be EXTENDED until September 1, 2012.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

2

July 19, 2012