Mollohan et al v. Price et al

Filing 103

MEMORANDUM OPINION AND ORDER adopting the 102 Proposed Findings and Recommendations, denying with out prejudice Defendants' 36 , 50 and 77 motions to dismiss, denying Defendants' 50 motion in the alternative to consolidate this ca se with 2:11-cv-104, denying as moot Plaintiff's 41 motion to moot Defendant's Answer, Motion to Dismiss and Counterclaim, denying as moot Plaintiff's 79 Motion to Strike Defendants' Motion to Dismiss, denying as moot 81 M OTION by Brothers of The Wheel Motorcycle Club Nomads, Inc., Gerald R. Mollohan, Frank J. Visconi to Dismiss Defendants' Answer and Objections to Defendants' Answer and Counterclaim, denying without prejudice Plaintiff's 32 , 46 , [4 7], 48 , 52 , 54 , 55 , and 87 motions for injunctive relief, denying without prejudice Plaintiff's 57 and 58 motions for declaratory relief, and directing that this civil action remain referred to Magistrate Jude Tinsley for additional proceedings. Signed by Judge Thomas E. Johnston on 3/10/2015. (cc: attys; any unrepresented party) (tmh)

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

GERALD R. MOLLOHAN, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-cv-32251

DONALD PRICE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are three motions filed by Defendants: two motions to dismiss
[ECF 36 and 77], and one motion to dismiss, or, in the alternative, to consolidate this case with
Case No. 2:11-cv-104 [ECF 50]. Also pending before the Court are several motions filed by
Plaintiff Gerald R. Mollohan (“Plaintiff”): eight motions for various forms of injunctive relief
[ECF 32, 46, 47, 48, 52, 54, 55, and 87], two motions construed as motions for declaratory relief
[ECF 57 and 58], a Motion to Moot Defendant’s Answer, Motion to Dismiss and Counterclaim
[ECF 41], and a Motion to Strike Defendants’ Motion to Dismiss [ECF 79]. 1 Finally, a Motion to
Dismiss Defendants’ Answer and Objections to Defendants’ Answer and Counterclaim was filed
by Plaintiff and Counterclaim Defendant Frank J. Visconi [ECF 81]. By Standing Order entered

1 Plaintiff Mollohan appears to have brought these motions on behalf of both himself and Plaintiff Brothers of the
Wheel Motorcycle Club Nomads Incorporated. As Magistrate Judge Tinsley explained to Plaintiff Mollohan,
however, corporations must be represented by licensed counsel and Mr. Mollohan is not an attorney. Magistrate
Judge Tinsley permitted the plaintiffs until September 22, 2014, to locate counsel to represent the corporation. (ECF
65 at 2.) To date, Plaintiff Brothers of the Wheel Motorcycle Club Nomads Incorporated does not appear to be
represented by counsel. Accordingly, the Court construes these motions as made by Plaintiff Mollohan individually.
Similarly, the Motion to Dismiss Defendants’ Answer and Objections to Defendants’ Answer and Counterclaim (ECF
81) is construed as being made only by Plaintiff Mollohan and Counterclaim Defendant Frank J. Visconi.

April 8, 2013, and entered in this case on December 16, 2013, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation (“PF&R”). Magistrate Judge Tinsley filed his PF&R [ECF 102] on February
20, 2015, recommending that this Court deny the pending motions and leave this matter referred to
Magistrate Judge Tinsley for additional proceedings.
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 on March
9, 2015. To date, no objections have been filed.
Accordingly, the Court ADOPTS the PF&R [ECF 102], DENIES WITHOUT
PREJUDICE Defendants’ motions to dismiss [ECF 36, 50, and 77], DENIES Defendants’
motion in the alternative to consolidate this case with Case No. 2:11-cv-104 [ECF 50], DENIES
AS MOOT Plaintiff’s Motion to Moot Defendant’s Answer, Motion to Dismiss and Counterclaim
[ECF 41], DENIES AS MOOT Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss [ECF
79], DENIES AS MOOT the Motion to Dismiss Defendants’ Answer and Objections to
Defendants’ Answer and Counterclaim filed by Plaintiff and Counterclaim Defendant Frank J.

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Visconi [ECF 81], DENIES WITHOUT PREJUDICE Plaintiff’s motions for injunctive relief
[ECF 32, 46, 47, 48, 52, 54, 55, and 87], DENIES WITHOUT PREJUDICE Plaintiff’s motions
for declaratory relief [ECF 57 and 58], and ORDERS that this civil action remain referred to
Magistrate Judge Tinsley for additional proceedings.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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March 10, 2015