United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that the defendants' motion to
dismiss be granted. (Doc. 14). Upon review, the
report and recommendation of Judge Carlson will be adopted in
of relevant background, the plaintiff filed the instant
action on January 25, 2017, in which he alleges that the
defendants engaged in a racketeering scheme of which he was a
victim. (Doc. 1). The complaint was served upon the
defendants, after which the instant motion to dismiss was
filed on March 9, 2017. (Doc. 5).
March 10, 2017, the plaintiff filed a motion for summary
judgment in which he argued that he was entitled to judgment
as a matter of law because “[t]he defendants have
failed to deny any of the claims [and] [f]ailure to deny is
an admission the claims are true.” (Doc. 7).
On March 13, 2017, Judge Carlson filed his initial report in
this action, in which he recommended that the plaintiff's
motion for summary judgment be dismissed without prejudice
because the plaintiff's motion rested on an erroneous
legal and factual premise. Because the defendants had pending
a motion to dismiss the plaintiff's claims, Judge Carlson
correctly provided that they were not required to submit an
answer which admitted or denied the factual allegations
presented in the plaintiff's complaint. It would only be
after the defendants' motion to dismiss is resolved, and
if the complaint is not dismissed, that the defendants would
be required to admit or deny the facts alleged in the
complaint. See Fed.R.Civ.P. 12(a)(4). As a result,
Judge Carlson recommended that the plaintiff's motion for
summary judgment be dismissed without prejudice. No
objections were filed to Judge Carlson's report. By
memorandum and order dated May 10, 2017, the court adopted
Judge Carlson's report in its entirety and the matter was
remanded to Judge Carlson for further proceedings.
of the court's Standing Practice Order issued on January
25, 2017, the plaintiff was notified of his duty to respond
to defense motions like the defendants' motion to dismiss
which is currently pending. Despite this, the plaintiff never
responded to the defendants' motion to dismiss. As such,
on April 3, 2017, Judge Carlson entered an order which
provided the plaintiff with a second notice of his duty to
respond to the defendants' motion to dismiss. (Doc.
13). The plaintiff was given until April 14, 2017,
to do so, and was informed of the provisions of Local Rule
7.6 which imposes an affirmative duty upon the plaintiff to
respond to such motions. The plaintiff was forewarned that
his failure to respond may result in the defendants'
motion being deemed unopposed and granted.
April 19, 2017, the plaintiff had failed to comply with Judge
Carlson's direction and respond to the defendants'
motion to dismiss. Accordingly, on that date, Judge Carlson
issued the pending report in which he recommends that the
defendants' motion to dismiss be granted. Initially,
Judge Carlson recommends that, under Local Rule 7.6, the
plaintiff should be deemed to concur in the motion to dismiss
since he has failed to timely oppose the motion or otherwise
litigate this matter. Judge Carlson notes that the plaintiff
was given specific direction to comply with the Local Rules
and failed to do so. As such, Judge Carlson correctly points
out that the Local Rule can be applied to grant the
defendants' motion to dismiss without an analysis of the
complaint's sufficiency. See Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (1991). In the
alternative, Judge Carlson recommends that dismissal is
warranted under Fed.R.Civ.P. 41 for failure to prosecute. In
so recommending, Judge Carlson reviewed each of the factors
set forth in Poulis v. State Farm Fire and Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984). He determined that each of
the six factors weighs in favor of granting the
defendants' motion to dismiss. With the time for doing so
having passed, no party has filed objections to Judge
Carlson's report and recommendation.
no objection is made to a report and recommendation, 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 (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,
not accept 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.
court has reviewed the reasons presented by Judge Carlson for
recommending that the defendants' motion to dismiss be
granted. Because the court agrees with the sound reasoning
that led Judge Carlson to the conclusions in his report and
finds no clear error on the face of the record, the ...