United States District Court, W.D. Tennessee
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION,
GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF
MEMPHIS' MOTION TO DISMISS, AND GRANTING IN PART AND
DENYING IN PART PLAINTIFFS' MOTION TO AMEND
S. NORRIS UNITED STATE DISTRICT JUDGE
the Court is the Magistrate Judge's Report and
Recommendation (the “Report”), filed February 21,
2019. (ECF No. 72) The Report recommends that Defendant City
of Memphis' Motion to Dismiss for Failure to State a
Claim (ECF No. 50) be granted. (ECF No. 72 at Page ID 227.)
Plaintiffs filed their “Appeal of Magistrate Judge
Decision” on March 1, 2019. (ECF No. 75.) Although not
labeled as an objection to the Magistrate Judge's Report,
the Court will treat it as such and refer to the response as
an objection. Plaintiffs also filed a “Motion to Amend
Complaint and Stay Ruling on Motion to Dismiss City of
Memphis [sic] Until After Amended Complaint, â filed
on March 1, 2019. (ECF No. 74.)
following reasons, the Report is ADOPTED IN
PART. Defendant City of Memphis' Motion to
Dismiss is GRANTED as to the claims arising
under the Tennessee Government Tort Liability Act
(“TGTLA”) and Tennessee Human Rights Act
(“THRA”) and DENIED without
prejudice as to the claims arising under 42 U.S.C. §
1983 (“§ 1983 claims”). Plaintiffs'
Motion to Amend Complaint is GRANTED to
allow Plaintiffs to amend their § 1983 claims to add
facts that “Plaintiffs have become aware of . . . which
would clarify the City of Memphis' conduct, ” (ECF
No. 74 at PageID 253), but DENIED as to the
claims arising under the TGTLA and THRA.
enacted 28 U.S.C. § 636 to relieve the burden on the
federal judiciary by permitting the assignment of district
court duties to magistrate judges. See United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing
Gomez v. United States, 490 U.S. 858, 869-70
(1989)); see also Baker v. Peterson, 67 Fed.Appx.
308, 310 (6th Cir. 2003). For dispositive matters,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” See Fed. R. Civ. P.
72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the
evidence, the court is free to accept, reject, or modify the
magistrate judge's proposed findings or recommendations.
28 U.S.C. § 636(b)(1). The district court is not
required to review-under a de novo or any other
standard-those aspects of the report and recommendation to
which no objection is made. See Thomas v. Arn, 474
U.S. 140, 150 (1985). The district court should adopt the
magistrate judge's findings and rulings to which no
specific objection is filed. See Id. at 151.
Objections to any part of a magistrate judge's
disposition “must be clear enough to enable the
district court to discern those issues that are dispositive
and contentious.” Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at
147 (stating that the purpose of the rule is to “focus
attention on those issues . . . that are at the heart of the
parties' dispute.”). Each objection to the
Magistrate Judge's recommendation should include how the
analysis is wrong, why it was wrong and how de novo review
will obtain a different result on that particular issue.
Howard v. Sec'y of Health & Human Servs.,
932 F.2d 505, 509 (6th Cir. 1991).
general objection, or one that merely restates the arguments
previously presented and addressed by the magistrate judge,
does not sufficiently identify alleged errors in the report
and recommendation. Id. When an objection reiterates
the arguments presented to the magistrate judge, the report
and recommendation should be reviewed for clear error.
Verdone v. Comm'r of Soc. Sec., No. 16-CV-14178,
2018 WL 1516918, at *2 (E.D. Mich. Mar. 28, 2018) (citing
Ramirez v. United States, 898 F.Supp.2d 659, 663
(S.D.N.Y. 2012)); accord Equal Employment Opportunity
Comm'n v. Dolgencorp, LLC, 277 F.Supp.3d 932, 965
(E.D. Tenn. 2017).
objection to the Report does not explain how the Report's
analysis is wrong, why it was wrong, or how de novo review
would result in a different conclusion. See Howard,
932 F.2d at 509. In their objection, Plaintiffs reiterate the
standard for motions to dismiss and “make an appeal
of the [Report] . . . and ask this Court to allow Plaintiffs
to amend their complaint before ruling on the Motion to
Dismiss by the City of Memphis.” (ECF No. 75 at
15(a) declares that leave to amend “shall be freely
given when justice so requires.” The Supreme Court has
held that leave to amend should normally be granted unless
there is some “apparent or declared reason” not
to allow the amendment. Foman v. Davis, 371 U.S.
178, 182 (1962). One reason for not allowing an amendment is
that the amendment would be futile. Id. “A
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Rose
v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420
(6th Cir. 2000) (citing Thiokol Corp. v. Dep't of
Treasury, State of Michigan, Revenue Div., 987 F.2d 376,
382-83 (6th Cir. 1993)).
Report found that Plaintiffs' § 1983 claims lacked
sufficient facts to state claims that are plausible on their
face and recommended that Defendant City of Memphis'
motion be granted, dismissing any §1983 claims against
Defendant City of Memphis. (ECF No. 72 at PageID 245- 46.)
Here, it is unknown whether Plaintiffs' amendment to
their complaint would be futile because they did not go into
detail about what facts will be added. Defendant City of
Memphis has not responded to Plaintiffs' motion. Federal
Rule of Civil Procedure 15 states that “[t]he court
should freely give leave when justice so requires.”
Additionally, the Scheduling Order lists March 27, 2019, as
the deadline for motions to amend pleadings, and Plaintiffs
did seek to amend their complaint with this Court prior to
that deadline. As such, the Court will give Plaintiffs a
chance to add factual support to their § 1983 claims
because a lack of factual support is why the Report
recommends dismissing these claims. Defendant City of
Memphis' Motion to Dismiss is DENIED
without prejudice as to the § 1983 claims at this time.
Defendant City of Memphis may move to dismiss these claims
after the amended complaint is filed if the claims'
newly-added facts do not state a claim on which relief may be
reading the complaint in the light most favorable to
Plaintiffs, the Magistrate Judge was unable to identify any
plausible tort claims against Defendant City of Memphis for
which the TGTLA exemptions would not apply and found that
Defendant City of Memphis was immune from suit for the
negligence claims under the TGTLA. (Id. at PageID
247-48.) As to the THRA claim, the Report found that
Plaintiffs failed to state a claim for relief because there
was no indication that Plaintiffs are or were employed by the
City. (Id. at PageID 248-49.) Plaintiffs failed to
respond to the Report's recommendation that the TGTLA and
THRA claims be dismissed, see Verdone, 2018 WL
1516918, at *2, other than seeking to add additional facts to
the complaint; however, any amendment with additional facts
would be futile for the claims arising under TGTLA.
Plaintiffs also fail to mention any THRA claim in their
motion seeking to amend their complaint and do not address
the THRA at all in their objection.
Plaintiffs do not raise any legal objection for the claims
arising under the TGTLA and THRA, the Court reviews the
Report for clear error. The Court has reviewed the report for
clear error and finds none. Accordingly, Plaintiffs'
objection as to the claims arising under the TGTLA and THRA
is OVERRULED and Plaintiffs' Motion to
Amend Complaint is DENIED for those claims.
The Court ADOPTS the Magistrate Judge's
Report as to the claims arising under the TGTLA and THRA and
GRANTS Defendant City of Memphis' Motion
to Dismiss as to those claims.
Court GRANTS IN PART Plaintiffs' Motion
to Amend Complaint to allow additional facts to be added to
the claims ...