Anderson v. Dunbar Armored, Inc.

Decision Date18 August 2009
Docket NumberCivil Action File No. 1:08-CV-3639-BBM.
Citation678 F. Supp.2d 1280
PartiesSharon ANDERSON and George Anderson, Plaintiffs, v. DUNBAR ARMORED, INC.; Harry A. Kocopi, Individually and as the Director of Employee Relations for Dunbar Armored, Inc.; Ashley R. Mew, Individually and as the Branch Manager for Dunbar Armored, Inc.; and Horace Johnson, Individually and as the General Manager of Dunbar Armored, Inc., Defendants.
CourtU.S. District Court — Northern District of Georgia

Lisa R. Reeves, Lisa R. Roberts & Associates, Newnan, GA, for Plaintiffs.

Paul Monnin, DLA Piper LLP, Atlanta, GA, Amy Beth Leasure, DLA Piper LLP, Tampa, FL, Richard J. Hafets, DLA Piper Rudnick Gray Cary, Baltimore, MD, for Defendants.

ORDER

BEVERLY B. MARTIN, District Judge.

This case is before the court on the Final Report and Recommendation of the Magistrate Judge (the "R & R") Doc. No. 42. In the R & R, the Magistrate Judge recommends that the court grant Defendants Dunbar Armored, Inc. ("Dunbar"), Harry A. Kocopi ("Mr. Kocopi"), and Horace Johnson's ("Mr. Johnson") (collectively "Defendants") converted Motion for Summary Judgment Doc. No. 24; and likewise grant Dunbar's converted Motion for Summary Judgment Doc. No. 5, Mr. Johnson's converted Motion for Summary Judgment Doc. No. 12, and Mr. Kocopi's converted Motion for Summary Judgment Doc. No. 14. Finally, the Magistrate Judge recommends that the court grant the Defendants' Motion to Strike the Second Amended Complaint Doc. No. 37; and recommends sua sponte, that Plaintiffs Sharon Anderson and George Anderson's (collectively "the Andersons") claims against Ashley R. Mew "(Mr. Mew") be dismissed without prejudice due to the Andersons' failure to serve Mr. Mew pursuant to Rule 4(m).

None of the parties has filed Objections to the R & R. Where no objections to the R & R have been stated, the court reviews the R & R for clear error. Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373-74 (N.D.Ga.2006) (Story, J.) (citing HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir.2005)); Chamblee v. Schweiker, 518 F.Supp. 519, 520 (N.D.Ga.1981) (O'Kelley, J.). Clear error review asks if, "after viewing all the evidence, we are `left with the definite and firm conviction that a mistake has been committed.'" HGI Assocs., 427 F.3d at 873 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

After having conducted a thorough review of the R & R, the court finds no clear error by the Magistrate Judge. See id. The court thus adopts the R & R in its entirety, and grants the Defendants' converted Motions for Summary Judgment in full.1

Summary

For the foregoing reasons, the court ADOPTS the Final Report and Recommendation of the Magistrate Judge Doc. No. 42. The Defendants' converted Motion for Summary Judgment Doc. No. 24 is GRANTED; Dunbar's converted Motion for Summary Judgment Doc. No. 5 is GRANTED; Mr. Johnson's converted Motion for Summary Judgment Doc. No. 12 is GRANTED; and Mr. Kocopi's converted Motion for Summary Judgment Doc. No. 14 is likewise GRANTED. The court also GRANTS the Defendants' Motion to Strike the Second Amended Complaint Doc. No. 37, and finally, DISMISSES WITHOUT PREJUDICE all claims against Mr. Mew due to the Andersons' failure to serve him pursuant to Rule 4(m).2 This case is hereby DISMISSED.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1), FED. R. Civ. P. 72(b), and N.D. Ga. R. 72.1(D)(2). Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties or, if a party is not represented, upon that party directly.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 24th day of July, 2009.

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

Currently before the Court are Defendants Dunbar Armored, Inc's ("Dunbar Armored"), Harry Kocopi's ("Kocopi") and Horace Johnson's ("Johnson") (collectively "Defendants") converted motions for summary judgment. Docs. 5, 12, 14 and 24. For the reasons set forth herein, the undersigned RECOMMENDS that Defendants' converted motion for summary judgment, Doc. 24, be GRANTED, and that Defendants Dunbar Armored, Kocopi, and Johnson's converted motions for summary judgment, Docs. 5, 12, and 14, which rely on the arguments made in Dunbar Armored's motion, also be GRANTED. The Court further RECOMMENDS that Defendants' motion to strike Plaintiffs' Second Amended Complaint, Doc. 37, be GRANTED. Also, the Court RECOMMENDS, SUA SPONTE, that Plaintiffs' claims against Defendant Mew be DISMISSED WITHOUT PREJUDICE for Plaintiffs' failure to serve him pursuant to FED. R. CIV. P. 4(m). The Court GRANTS Defendants' motion to stay discovery and defer issuance of the scheduling order, Doc. 33. Plaintiff's construed Rule 56(f) motion, Doc. 36, is DENIED.

INTRODUCTION

Plaintiffs filed a complaint on November 26, 2008, against Defendants alleging pregnancy discrimination and gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), harassment in violation of the Civil Rights act of 1991, 42 U.S.C. § 1981, et seq., ("§ 1981"), and negligent retention and hiring, intentional infliction of emotional distress, vicarious/imputed liability, loss of consortium, and punitive damages under Georgia law. Doc. 1. In lieu of answering, Defendants filed motions to dismiss and submitted documents in support of their motions. See Docs. 5, 12, and 14. Plaintiffs responded to these motions and also submitted various documents in support of their responses. Docs. 18 and 22.

On March 9, 2009, Plaintiffs filed an amended complaint against all Defendants alleging discrimination based on race and gender in violation of Title VII and 1981, violation of the Equal Protection Clause of the Fourteenth Amendment, conspiracy in violation of 18 U.S.C. § 241, deprivation under color of law in violation of 18 U.S.C. § 242, and intentional infliction of emotional distress, negligent infliction of emotional distress, loss of consortium, and punitive damages under Georgia law, harassment in violation of 1981, retaliation in violation of Title VII and 1981, and vicarious/imputed liability, and negligent retention and hiring under Georgia law by Dunbar Armored. Doc. 15 ("Amended Complaint").

Defendants again responded by filing a motion to dismiss with documents in support of their motion. Doc. 24. Plaintiffs timely responded and relied on their documents previously submitted. Docs. 18, 22 and 25. Defendants timely filed a reply brief. Doc. 26.

On June 2, 2009, the undersigned converted Defendants' various motions to dismiss into motions for summary judgment, and gave Plaintiffs until June 23, 2009, to respond to the converted motions for summary judgment. Doc. 27. Thereafter, Defendants filed a motion to stay discovery and issuance of the scheduling order, to which Plaintiffs timely responded. Docs. 33 and 38. On June 22, 2009, Plaintiffs filed a second amended complaint and a response to Defendants' construed motions for summary judgment. Docs. 35 and 36, respectively. Defendants then filed a motion to strike Plaintiffs' second amended complaint and a reply to Plaintiffs' response to the construed motions for summary judgment. Doc. 37 and 39, respectively. Plaintiffs timely responded to Defendants' motion to strike. Doc. 40. With briefing concluded, the Court now considers Defendants' converted motions for summary judgment, motion to strike, and motion to stay discovery and defer issuance of the scheduling order, and Plaintiffs' construed Rule 56(f) motion.

I. Preliminary Matters
A. Defendant's Motion to Stay Discovery and Defer Issuance of Scheduling Order, Doc. 33

Defendants argue that discovery should be stayed and the issuance of the scheduling order deferred until the Court rules on the converted motions for summary judgment. Doc. 33 at 1. Defendants also argue that the Court's ruling on the dispositive motions is likely to eliminate the need for any discovery, or reduce the number of claims and parties, which would affect the amount of discovery needed, and therefore, to reduce the expense on the parties, discovery should be delayed pending the Court's ruling. Id. at 2. Defendants also argue that the issuance of the scheduling order should be delayed to avoid unnecessary time and expense caused by the issuance of the scheduling order. Id. at 3.

Plaintiffs respond that discovery should not be stayed and the scheduling order deferred because discovery is an "integral part of an employment discrimination claim" and Defendants have not show good cause. Doc. 38 at 3. Plaintiffs also argue that a scheduling order is necessary "as the preservation of evidence is of the upmost importance due to the fact that a corporate entity and electronic evidence is involved in this matter." Id.. Plaintiffs further argue that...

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