Kyser v. Edwards et al

Filing 14

MEMORANDUM OPINION AND ORDER adopting the 13 Proposed Findings and Recommendation by Magistrate Judge; and notes that the 4 , 9 Motions to Dismiss and 6 , 11 Supplemental Motions Dismiss could properly be granted; the Court declines to dismiss these consolidated actions at this time; providing plaintiff 10 days from the entry of this order to file an amended complaint stating his claims with the requisite particularity; if plaintiff fails to file an amended complaint in that period, the Court will deem it a failure to prosecute and grant the Motions to Dismiss. Signed by Judge Thomas E. Johnston on 3/6/2017. (cc: plaintiff; counsel of record; any unrepresented party) (taq)

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

ANDY L. KYSER,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-05006

JON EDWARDS,
Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Motions to Dismiss (ECF Nos. 4 & 9) and Supplemental
Motions Dismiss (ECF Nos. 6 & 11).1 By Standing Order entered January 4, 2016, and filed in
this case on June 2, 2016, 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 No. 13) on February 9, 2017, recommending that this Court GRANT
Defendant’s Motions to Dismiss and Supplemental Motions to Dismiss and DISMISS these
consolidated actions.
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

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This action was consolidated with Civil Action 2:16-cv-5007 on January 23, 2017. Defendant filed a corresponding
Motion to Dismiss and Supplemental Motion to Dismiss in each case prior to consolidation, resulting in the four
motions addressed here.

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 in this case were
due on February 27, 2017. To date, no objections have been filed.
Accordingly, the Court ADOPTS the PF&R (ECF No. 13) and notes that the Motions to
Dismiss (ECF Nos. 4 & 9) and Supplemental Motions Dismiss (ECF Nos. 6 & 11) could properly
be granted. However, the Court declines to dismiss these consolidated actions at this time.
Instead, the Court will provide Plaintiff ten days from the entry of this order to file an amended
complaint stating his claims with the requisite particularity.2 If Plaintiff fails to file an amended
complaint in that period, the Court will deem it a failure to prosecute and grant the Motions to
Dismiss.
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 6, 2017

In addition to the claims addressed in the PF&R, the Court notes that the Complaints allege facts that imply a claim
of fraud. However, fraud claims must be plead “with particularity,” which the Complaints here fail to do. Fed. R.
Civ. P. 9(b).

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