United States District Court, M.D. Pennsylvania
MONROE GROCERY, INC. and FRANCISCO TAVAREZ Plaintiffs
UNITED STATES OF AMERICA, GILDA TORRES, and SONNY PERDUE Defendants
Malachy E. Mannion, United States District Judge.
before the court is the report and recommendation
(“Report”), (Doc. 70), of Magistrate Judge Susan
E. Schwab, which recommends that the Government's motion
for partial judgment on the pleadings, (Doc. 59), be denied.
No. objections have been filed to the Report. Based upon the
court's review of the record, Judge Schwab's Report
will be ADOPTED IN ITS ENTIRETY, and the
Government's motion for partial judgment on the pleadings
will be DENIED.
25, 2017, plaintiffs Monroe Grocery, Inc.
(“Monroe”) and Francisco Tavarez
“plaintiffs”), filed a pro se complaint,
(Doc. 1), against Retailer Operation Division, which filed a
motion to dismiss, (Doc. 6), on October 6, 2017. On October
27, 2017, Evan C. Pappas entered his appearance on behalf of
plaintiffs, (Doc. 10), and Andrew Tapp filed a petition for
admission pro hac vice to represent plaintiffs,
(Doc. 11), which was granted by Judge Schwab on October 31,
2017, (Doc. 12).
December 12, 2017, plaintiffs filed an amended complaint
against the United States of America (the
“Government”), Gilda Torres
(“Torres”), and Sonny Perdue
“defendants”), alleging constitutional violations
of equal protection and substantive due process. (Doc. 15).
Then, on December 26, 2017, the Government filed a motion to
dismiss plaintiffs' amended complaint or, in the
alternative, for summary judgment. (Doc. 18). The Government
filed a brief in support of its motion, (Doc. 31), and
statement of facts, (Doc. 32), on January 29, 2018.
Plaintiffs filed a brief in opposition to the
Government's motion on March 7, 2018, (Doc. 38), and the
Government filed a reply brief on March 21, 2018, (Doc. 39).
3, 2018, Judge Schwab issued a report and recommendation,
which recommended that the Government's motion to dismiss
be granted in part and denied in part. (Doc. 40). More
specifically, Judge Schwab recommended that plaintiffs'
claims seeking damages and their due process claim seeking
injunctive relief against defendants, in their official
capacities, be dismissed and that plaintiffs be granted leave
to file a second amended complaint. (Doc. 40, at 31). This
court adopted Judge Schwab's report and recommendation
over the Government's objections. (Doc. 50).
March 6, 2019, plaintiffs filed a second amended complaint,
(Doc. 54), again bringing due process and equal protection
claims. The Government filed an answer on March 18, 2019.
(Doc. 56). Then, on June 26, 2019, the Government filed a
motion for partial judgment on the pleadings, (Doc. 59), to
which plaintiffs filed a brief in opposition, (Doc. 65). The
Government filed a reply brief. (Doc. 66). Judge Schwab
issued the present Report on October 29, 2019, to which no
party has filed objections. The matter is now ripe for this
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's note; 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.
Judge Schwab recommends that the Government's motion be
denied because its arguments as to why the complaint should
be dismissed do not sufficiently address the specific
allegations in the complaint. Having reviewed the Report of
Judge Schwab, as well as the record and pleadings, the court
finds that Judge Schwab used proper reasoning and evidence to
support her Report and arrived at a legally-sound conclusion.
Therefore, the court adopts the Report of Judge Schwab as the
opinion of this court.
IT IS HEREBY ORDERED THAT:
(1) Judge Schwab's Report, (Doc. 70), is ADOPTED
IN ITS ENTIRETY;
(2) The Government's motion for partial summary judgment,