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Barr v. Barbieri

United States District Court, Third Circuit

May 29, 2013

EDWARD J. BARR, Plaintiff,
v.
ALEXIS L. BARBIERI, et al., Defendants

MEMORANDUM

MALACHY E. MANNION, District Judge. [1]

Pending before the court is the report and recommendation of Magistrate Judge J. Andrew Smyser, (Doc. No. 23), which recommends that the defendants' motions to dismiss the plaintiff's complaint, (Doc. No. 11, Doc. No. 13), be granted and that the plaintiff be given leave to file an amended complaint. Based upon the court's review of the record, the report will be adopted in part and not adopted in part.

I. PROCEDURAL HISTORY

By way of relevant background, the plaintiff filed the instant action on January 24, 2012, against fifty (50) Pennsylvania executive and legislative branch officials. (Doc. No. 1). In his complaint, the plaintiff alleges that he obtained a real estate broker's license in 1980 and that, through gross negligence and incompetence on the part of Pennsylvania Department of State employees, the license was not renewed when the plaintiff sought to have it renewed.

The plaintiff seeks various forms of relief, including that the court order the defendants to pay him compensatory and punitive damages; order the defendants to issue him a real estate broker's license; order each defendant to pay him $100.00 per day for each day that his license was withheld; and order that the defendants not be paid compensation by the Commonwealth.

On April 2, 2012, the legislative defendants (also referred to as the "General Assembly defendants") filed a motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted, (Doc. No. 11), along with a brief in support thereof, (Doc. No. 12). On the same day, the executive defendants also filed a motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted, (Doc. No. 13), along with a brief in support thereof, (Doc. No. 14). The plaintiff filed briefs opposing the defendants' motions to dismiss on April 18, 2012. (Doc. No. 19, Doc. No. 20). On May 4, 2012, the executive defendants filed a reply brief, (Doc. No. 21), to which the plaintiff filed a sur-reply on May 11, 2012, (Doc. No. 22).

On June 4, 2012, Judge Smyser issued his report recommending that the defendants' motions to dismiss the plaintiff's complaint be granted and the plaintiff be granted leave to file an amended complaint. (Doc. No 23). The legislative defendants filed objections to the report on June 18, 2012, (Doc. No. 24), along with a brief in support thereof, (Doc. No. 25), challenging only the court's decision to allow the plaintiff to file an amended complaint with respect to them. The plaintiff filed a "response" to the report on June 19, 2012[2]. (Doc. No. 26). The executive defendants have not objected to the report.

II. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1); Brown v. Astrue , 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo , the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel , 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz , 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc. , 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson , 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.

III. DISCUSSION

With respect to the report currently pending before the court, no party objects to Judge Smyser's recommendation that the defendants' motions to dismiss be granted on the basis that the plaintiff failed to adequately allege personal involvement on behalf of any of the fifty individual defendants named in the complaint[3]. The court has reviewed that determination by Judge Smyser and finds no clear error. Therefore, Judge Smyser's report will be adopted to the extent that it is recommended that the defendants' motions to dismiss the plaintiff's complaint be granted.

The only substantive objection to Judge Smyser's report is to his recommendation that the plaintiff be allowed to amend his complaint. To this extent, the legislative defendants argue that any amendment by the plaintiff with respect to them would be futile. The court agrees.

Judge Smyser correctly found that "if a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. County of Allegheny , 515 F.3d 224, 245 (3d Cir. 2008). In his report, Judge Smyser found that he "[could] not say with certainty that amendment would ...


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