United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is the report and recommendation of
Magistrate Judge William I. Arbuckle (“Report”)
(Doc. 16), which recommends that the plaintiff Holly
Ivanitch's (“Ivanitch”) amended complaint,
(Doc. 6), be dismissed or, alternatively, that the defendant
Dunkin Donuts' (“Defendant”) motion to
dismiss, (Doc. 12), be granted as unopposed. No objections
have been filed to the Report. Based on the court's
review of the record and pleadings in this matter, the Report
is adopted in part, Ivanitch's amended complaint, (Doc.
6), is dismissed pursuant to Federal Rule of Civil Procedure
41(b), and the Defendant's motion to dismiss, (Doc. 12),
is dismissed as moot.
objections are made to the report and recommendation of a
magistrate judge, 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,
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); M.D.Pa. L.R. 72.31.
September 12, 2018, Ivanitch, proceeding pro se,
filed a complaint against the Defendant alleging
discrimination. (Doc. 1). On December 28, 2018, Judge
Arbuckle issued an order, (Doc. 5), permitting Ivanitch to
proceed in forma pauperis. In his order, Judge
Arbuckle also observed that Ivanitch's complaint, among
other things, failed to state a claim upon which relief could
be granted, but permitted her “an opportunity to cure
the deficiencies noted” by filing an amended complaint
by January 31, 2019. (Doc. 5, at 2).
filed a timely amended complaint. (Doc. 6). On May 6, 2019,
the Defendant filed a motion to dismiss, (Doc. 12), arguing
that Ivanitch failed to establish a prima facie case
of reverse race discrimination. On May 13, 2019, Judge
Arbuckle issued an order directing Ivanitch to file a brief
in opposition to the motion to dismiss and warned that the
failure to do so could result in the Defendant's motion
being deemed unopposed or in dismissal of the case. (Doc.
14). Ivanitch failed to comply with the order and, on May 30,
2019, Judge Arbuckle issued another order, which contained
the same warnings but, this time, gave Ivanitch until June
14, 2019, to file the brief in opposition. (Doc. 15).
Ivanitch once again failed to file a brief in opposition.
October 23, 2019, Judge Arbuckle issued the instant Report.
In it, Judge Arbuckle recommends that the Defendant's
motion to dismiss, (Doc. 12), be granted as unopposed
pursuant to Local Rule 7.6,  given Ivanitch's failure to
file a brief in opposition despite the court's orders
warning of the consequences of failing to do so. In the
alternative, the Report recommends that Ivanitch's
amended complaint, (Doc. 6), be dismissed pursuant to Rule
41(b) for failure to prosecute, since all
Poulis factors weigh in favor of dismissal.
court has reviewed the Report of Judge Arbuckle, as well as
the complaint, the amended complaint, the motion to dismiss,
and the orders, and the court will adopt the Report insofar
as it recommends dismissal of the amended complaint pursuant
to Rule 41(b) for failure to prosecute. Upon review of Judge
Arbuckle's thorough analysis of the six Poulis
factors, the court agrees with the sound reasoning that led
him to conclude that all factors weigh in favor of dismissal
of this case. As such, the court adopts that portion of the
Report of Judge Arbuckle as the opinion of the court.
THEREFORE, IT IS HEREBY ORDERED THAT:
The Report of Judge Arbuckle, (Doc. 9), is ADOPTED IN
Ivanitch's amended complaint, (Doc. 6), is
DISMISSED pursuant to Rule 41(b);
The Defendant's motion to dismiss, (Doc. 12), is
DISMISSED AS MOOT; and
The Clerk of Court is directed to CLOSE THIS