United States District Court, W.D. Tennessee, Western Division
PATRICIA M. AHNEMAN, JR., Plaintiff,
FEDERAL EXPRESS CORPORATION, Defendant.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss filed on
November 4, 2016. (ECF No. 7). This case was referred to the
United States Magistrate Judge for management and for all
pretrial matters for determination and/or report and
recommendation as appropriate. (Admin. Order 2013-05, April
29, 2013). On December 27, 2016, the Magistrate Judge issued
his Report and Recommendation that Defendant's Motion to
Dismiss be granted. (ECF No. 12). To date, no objections have
reviewing de novo the Magistrate Judge's Report
and Recommendation, Defendants' Motion, and the entire
record, the Court hereby ADOPTS the Magistrate Judge's
Report and Recommendation.
Court adopts the Magistrate Judge's proposed findings of
fact in this case. See (ECF No. 8).
Standard for District Court's Review of a Report and
district court has the authority to refer certain pre-trial
matters to a magistrate judge for resolution. 28 U.S.C.
§ 636(b); Callier v. Gray, 167 F.3d 977, 980
(6th Cir. 1999). These referrals may include non-dispositive
pretrial matters, such as a motion to compel or a motion for
a protective order concerning discovery. 28 U.S.C. §
636(b)(1)(A). The district court has appellate jurisdiction
over any decisions the magistrate judge issues pursuant to
such a referral. Fed.R.Civ.P. 72. The referrals may also
include dispositive matters such as a motion for summary
judgment or a motion for injunctive relief. 28 U.S.C. §
636(b)(1)(B). When a dispositive matter is referred, the
magistrate judge's duty is to issue proposed findings of
fact and recommendations for disposition, which the district
court may adopt or not. “The district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3).
standard of review that is applied by the district court
depends on the nature of the matter considered by the
magistrate judge. If the magistrate judge issues a
non-dispositive pretrial order, the district court should
defer to that order unless it is “found to be clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a). However, if the magistrate
judge order was issued in response to a dispositive motion,
the district court should engage in de novo review
of all portions of the order to which specific written
objections have been made. 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); Baker v. Peterson, 67 Fed.
App'x. 308, 311, 2003 WL 21321184 *2 (6th Cir. 2003)
(“A district court normally applies a ‘clearly
erroneous or contrary to law' standard of review for
non[-]dispositive preliminary measures. A district court must
review dispositive motions under the de novo
Standard for Motion To Dismiss
assessing a plaintiff's claim at the Fed.R.Civ.P. 12
(b)(6) motion to dismiss stage, the Sixth Circuit has stated
that a complaint must allege sufficient facts to state a
plausible claim for relief, and that a reviewing court must
“construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.”
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012). “Pro se complaints are held to a less
stringent standard than pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However,
pro se litigants “are not exempt from the
requirements of the Federal Rules of Civil Procedure.”
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989);
see also Brown v. Matauszak, 415 F. App'x 608,
613 (6th Cir. 2011) (“[A] court cannot create a claim
which [a plaintiff] has not spelled out in his
pleading.”) (internal quotation marks omitted).
Magistrate Judge recommends that Plaintiff's Complaint be
dismissed without prejudice. Rule 4 of the Federal Rules of
Civil Procedure requires the Plaintiff to serve the Defendant
with a properly issued summons and a copy of the complaint
within 90 days of filing the complaint, absent a showing by
the Plaintiff of good cause for delay. See Fed. R.
Civ. P. 4(c)(1) & 4(m). The court-imposed December 15,
2016 deadline, which provided Plaintiff an additional 42
days, has passed. To date, Plaintiff still has not served
Defendant. Under these circumstances, the Magistrate Judge
states that the Court may sua sponte dismiss
Plaintiff's complaint without prejudice. See Pearison
v. Pinkerton's Inc., 90 F. App'x 811, 812-13
(6th Cir. 2004) (citing Byrd ...