Opinion
Civil No. 3:20-CV-231
11-23-2020
JEANNE HAMILL, Plaintiff, v. TWIN CEDARS SENIOR LIVING CENTER, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
This case results from an unusual series of events that begins with a nursing home discharging a resident via a 3-hour long Uber ride from Shohola, Pennsylvania, to Tom's River, New Jersey, during which the resident allegedly suffered a stroke and a heart attack, requiring intubation, a ventilator, and admission to an Intensive Care Unit. The resident, Eugene Hamill, was later transferred to a skilled nursing facility and he passed away just over one year later. The plaintiff, Jeanne Hamill, Eugene's wife at the time of his death and administratrix of his estate, now brings this suit against Twin Cedars, LLC ("Twin Cedars")—the entity that operated the nursing home; Tamara Singer—the administrator of the nursing home at the time of Mr. Hamill's discharge; and Little Walker, LLC ("Little Walker")— the entity that purchased assets of Twin Cedars approximately one year after Mr. Hamill's discharge.
Hamill filed an amended complaint on March 17, 2020, raising claims of negligence and wrongful death as well as a claim under the Survival Act against both Defendant Singer and Defendant Twin Cedars. The complaint raised the same claims against Defendant Little Walker under a theory of successor liability. Singer and Twin Cedars filed an answer that raised a cross-claim against Little Walker for indemnification or contribution.
Little Walker has now filed a motion to dismiss (Doc. 43), arguing that the plaintiff has failed to state a claim against it under a theory of successor liability. For the reasons set forth below, we agree, and we will recommend that the claims against this defendant be dismissed.
II. Background
The factual background of this case is taken from the facts set forth in the plaintiff's amended complaint, which are accepted as true for purposes of considering the pending motion to dismiss. The plaintiff's husband, Eugene Hamill, suffered from multiple serious medical diagnoses, including hypertension, atrial fibrillation, coronary artery disease, carcinoma of the bone, degenerative joint disease, and neurologic gait dysfunction. (Doc. 17, ¶ 3). Mr. Hamill was a resident of Twin Cedars Personal Care Home and was discharged on September 11, 2018. (Id., ¶ 12).
The plaintiff alleges that Mr. Hamill was a resident of Twin Cedars Personal Care Home and was discharged by Defendant Singer, against the direction of the Pennsylvania Department of Human Services Bureau of Human Services Licensing (BHSL), for the three-hour trip to his home in Tom's River, New Jersey, utilizing the Uber ride-sharing service. (Id., ¶¶ 2, 4, 23-24). During his lengthy Uber ride, Mr. Hamill began vomiting and became unresponsive. (Id., ¶ 25). He suffered a stroke and a heart attack, requiring EMS transport to Barnabas Health Community Medical Center, where he was intubated, placed on a ventilator, and admitted to the intensive care unit (ICU). (Id., ¶¶ 5, 25). Mr. Hamill was later transferred to a skilled nursing facility, where he resided until he passed away on September 26, 2019. (Id., ¶¶ 6, 27). This lawsuit followed. (Id.).
The plaintiff asserts that as a result of Mr. Hamill's unsafe discharge against the directive of the BHSL, Twin Cedars' license was revoked on December 20, 2018 for violating 55 Pa. Code § 2600.42(b), a section of Pennsylvania's Administrative Code prohibiting the neglect, intimidation, physical or verbal abuse, mistreatment, corporal punishment, or discipline of residents by a residential facility. (Id., ¶¶ 7, 29). Furthermore, Hamill claims that this is not the first violation of the Administrative Code that Twin Cedars has committed, nor is it the first violation specifically under the resident abuse section. (Id., ¶¶ 8, 33).
Therefore, Hamill brought claims of negligence and wrongful death against Singer and Twin Cedars, as well as a claim under Pennsylvania's Survival Act. (Id., ¶¶ 36-77). She also brought the same claims against Little Walker under a successor-in-interest liability theory. (Id., ¶¶ 78-101).
Little Walker has now filed the instant motion to dismiss (Doc. 43), arguing that Hamill has failed to adequately plead claims against it. Specifically, Little Walker asserts that Hamill did not allege facts sufficient for the "mere continuation" or de facto merger exceptions to successor liability. Moreover, it asserts that Twin Cedars still exists and therefore has no successor, thus, no successor liability can exist. (Doc. 44). This motion has been fully briefed and is ripe for resolution. (Docs. 44, 51, 54). For the following reasons, we agree, and we will recommend that this motion to dismiss be granted.
III. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id., at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S. Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. This Motion to Dismiss Should Be Granted.
Hamill brings claims against Little Walker as a successor-in-interest to Twin Cedars, alleging that it is a mere continuation of Twin Cedars or that a de facto merger occurred, and that as a result, Little Walker is liable to Hamill for the injuries and death of her husband after his discharge from Twin Cedars' facility, even though Little Walker had no interest in Twin Cedars at the time of these events. However, after review of the complaint, we find that Hamill has not sufficiently pleaded these claims against this defendant. Accordingly, we will recommend that the motion to dismiss be granted.
As we have noted, Hamill brings her claims against Little Walker under a theory of successor liability. The well-established rule in Pennsylvania is that "when one corporation sells or transfers its assets to a second corporation, the successor does not become liable for the debts and liabilities of the predecessor." Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 308 (3d Cir. 1985); see also Fizzano Bros. Concrete Prod. V. XLN, Inc., 42 A.3d 951, 956 (2012). There are, however, several specific exceptions to that general rule. Under Pennsylvania Law, a purchaser of assets will not be liable to the debts and obligations of the seller, unless
Hamill contends that Little Walker's motion to dismiss improperly relied on the asset purchase agreement, and as a result, she claims that Little Walker is attempting to improperly turn the motion to dismiss into a motion for summary judgment. (Doc. 51). However, while Little Walker does mention that it purchased assets from Defendant Twin Cedars, it does not, as claimed by Hamill, claim that the asset purchase agreement is the cornerstone of its motion. In fact, the word "agreement" never even appears in Little Walker's motion to dismiss or its brief in support of its motion to dismiss. (Docs. 43, 44). Therefore, a discussion of the summary judgment standard or whether a motion for summary judgment is improper is unnecessary.
(1) the purchaser of assets expressly or impliedly agrees to assume obligations of the transferor; (2) the transaction amounts to a consolidation or de facto merger; (3) the purchasing corporation is merely a continuation of the transferor corporation; or (4) the transaction is fraudulently entered into to escape liability.Phila. Electric Co., 762 F.2d at 308-09. There is no allegation that Little Walker agreed to assume these tort obligations from Twin Cedars. Nor does Hamill allege that this was a fraudulent transaction. Therefore, only the second and third exceptions—de facto merger and mere continuation—are relevant here. While the Third Circuit generally treats these exceptions identically, there are subtle differences between these two doctrines. Accordingly, we will analyze them individually.
a. De Facto Merger Exception
The four factors courts examine to determine whether an asset purchase amounts to a de facto merger are: "(1) continuity of ownership; (2) cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable; (3) assumption by the successor of liability ordinarily necessary for uninterrupted continuation of the business; and (4) continuity of the management, personnel, physical location, and the general business operation." Vital Pharms., Inc. v. USA Sports, LLC, No. 3:11-CV-975, 2012 WL 760561, at *5 (M.D. Pa. Mar. 8, 2012) (citing Cont'l Ins. Co. v. Schneider, Inc., 810 A.2d 127, 134 (Pa. Super. Ct. 2002))). The Third Circuit considers the first factor—continuity of ownership—to be a threshold issue. Blackburn v. Paraco Gas Corp., No. 3:CV-08-1789, 2010 WL 11553728, at *6 (M.D. Pa. Aug. 23, 2010) (citing Fizzano Bros. Concrete Products, Inc. v. XLN, Inc., 973 A.2d 1016, 1020 (Pa. Super. Ct. 2009)). On this score, the Court of Appeals has held:
Continuity of ownership is a key element that must exist in order to apply the de facto merger doctrine, since in the absence of a transfer of stock for assets the consequence of the transaction is not the functional equivalent of a merger. Instead, where there is no continuity of ownership the transaction is merely an arms-length transaction between two corporations and not in any sense a merging of two corporations into one.Id. Where none of the owners of the predecessor company become owners of the successor company, the inquiry into successor liability should come to an end. Id. However, "only some continuity of ownership is required . . . the critical continuity of ownership appears to be whether the owners retained some ongoing interest in their assets," rather than absolute continuity of ownership. United States v. Gen. Battery Corp., Inc., 423 F.2d 294, 307 (3d Cir. 2005).
In the instant case, Hamill has failed to allege any facts relating to this crucial, threshold element. Hamill repeatedly asserts that Little Walker "still operates the same senior living facility at the same address, at the same building, with the same phone number, the same website, and virtually the same corporate name." (Doc. 51, at 18). Hamill claims that these assertions "make Defendant Little Walker's continuation of Twin Cedar's enterprise sufficiently plausible." (Id.) We disagree. This element requires that the owners of the predecessor company either become owners of the successor company, Blackburn, 2010 WL 11553728, at *6, or retain some ongoing interest in the assets. Gen. Battery Corp., 423 F.2d at 307. Hamill's allegations in the complaint relate to the operation of the facility itself and make no reference to the ownership interest between the two companies. While this should end the inquiry into a de facto merger, an analysis of the remaining factors makes it clear that Hamill's allegations are insufficient to meet the de facto merger exception.
The second factor in the de facto merger analysis is the "cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable." Vital Pharms., Inc., 2012 WL 760561, at *5. "The de facto merger doctrine recognizes that an essential characteristic of a merger is that one corporation survives while the other ceases to exist." Berg Chilling Sys., Inc. v. Hull Corp., 435 F.2d 455, 470 (3d Cir. 2006). Regarding this factor, it is well-established that "[i]f the original entity still exists, however, there is no successor, and therefore, no successor liability." Norfolk S. Ry. Co. v. Pittsburgh & W. Va. R.R., 153 F. Supp. 2d 778, 807 (W.D. Pa. 2015); see Hyjurick v. Commonwealth Land Title Ins. Co., No. 3:11-CV-1282, 2012 WL 1463633, at *4 (M.D. Pa. Apr. 27, 2012). It is also well-established that the predecessor does not necessarily need to dissolve; it is sufficient if the predecessor is reduced to an "assetless shell." Vital Pharms., Inc., 2012 WL 760561, at *5 (citing Comm. v. Lavelle, 555 A.2d 218, 227 (Pa. Super. Ct. 1989)).
In the instant case, the complaint is devoid of any factual averments that Twin Cedars ceased to exist, or that Twin Cedars is merely an "assetless shell." To the contrary, the complaint names Twin Cedars as a party to the action and asserts that "Defendant Twin Cedars operates a for-profit senior living facility." (Doc. 17, ¶ 19). Therefore, Hamill has failed to allege sufficient facts in her complaint to satisfy this factor.
The third factor is "whether the seller corporation has assumed the obligations ordinarily necessary for uninterrupted continuation of normal business operations." Berg Chilling Sys., 435 F.2d at 470. This information is normally found within the asset purchase agreement, but the lack of assertions relating to this factor are not fatal to a claim of a de facto merger. Vital Pharms., Inc., 2012 WL 760561, at *6 (holding that the plaintiff sufficiently alleged a de facto merger theory of successor liability despite not alleging that the successor corporation assumed the predecessor's liabilities, because it sufficiently plead the other factors).
The last factor in a de facto merger analysis is the continuity of the general business operations. This requires consideration of whether the successor "continued the enterprise of the seller corporation" by looking at "whether there is a continuity of management, personnel, physical location, assets, and the general business operations of the merging entities." Vital Pharms., Inc., 2012 WL 760561, at *5 (quoting Berg Chilling Sys., 435 F.2d at 469) (internal quotation marks omitted). Here, the complaint alleges continuity of physical location and general business operations of the two entities, but makes no mention of management, personnel, or assets. (Doc. 17, ¶ 34). Thus, while Hamill's complaint alleges some facts that support this factor, the complaint is insufficient on this score to establish an inference of continuity of the general business operation.
While Hamill concedes that she "lacks details necessarily to allege facts relating to the other three prongs," (Doc. 51, at 18), she believes she should be permitted to conduct additional discovery relating to the transactions between Little Walker and Twin Cedars. On this score, Hamill relies on our de facto merger analysis set forth in American Global Logistics v. Elk Group. Int'l, LLC, No. 3:18-CV-1330, 2019 WL 1320793 (M.D. PA. Feb. 19, 2019), report and recommendation adopted sub nom. Am. Glob. Logistics, LLC v. Elk Grp. Int'l, LLC, No. 3:18-CV-1330, 2019 WL 1318248 (M.D. Pa. Mar. 22, 2019). However, this reliance is misplaced.
While both this case and American Global Logistics involve a claim of successor liability based on a supposed de facto merger and an effort to overcome a motion to dismiss, the similarities between the two cases end there. The plaintiff in American Global Logistics set forth facts alleging that the predecessor corporation ceased its operations, the successor corporation continued to market the predecessor's brand as if no sale had occurred, held itself out as being a continuation of the predecessor, offered the same products under the same brand names, used substantially the same vendors and supplies, operated out of the same premises and facilities, continued to employ the predecessor's officers and directors, and retained, hired, and employed substantially the same individuals as the predecessor, including key personnel and supervisors. American Global Logistics, 2019 WL 1320793 at *2. However, in the instant case, Hamill merely alleges that there is some continuity of the business operation of Twin Cedars. She solely relies on her allegation that "Defendant Little Walker still operates the same personal care home facility with the same phone number, address, building, and website as did Defendant Twin Cedars," as well as the fact that Little Walker's registration with the Pennsylvania Corporations Bureau of "Twin Cedar Senior Living." (Doc. 51, at 18). This, on its own, is insufficient to show that Hamill is entitled to relief on her claims against Little Walker under a theory of de facto merger. Accordingly, the plaintiff's claim fails as a matter of law.
b. Mere Continuation Exception
As to the third exception to the rule against successor liability, "[a] mere continuation occurs when a new corporation is formed to acquire the assets of an extant corporation, which then ceases to exist." Vital Pharms., Inc., 2012 WL 760561, at *5 (M.D. Pa. Mar. 8, 2012) (quoting Cont'l Ins. Co., 810 A.2d at 134) (internal quotation marks omitted). This results when "there exists one corporation which merely changes its form and ordinarily ceases to exist upon the creation of the new corporation which is its successor." Id. The primary elements of this exceptions are "identity of the officers, directors, or shareholders, and the existence of a single corporation following the transfer." Id.
Hamill's complaint fails to allege any aspect of the mere continuation exception. Nowhere in the complaint does she allege that the Twin Cedars facility remains under the control of the same officers, directors, and shareholders. In her opposition brief, Hamill relies heavily on her assertion in the complaint that "Defendant Little Walker still operates the same personal care home facility with the same phone number, address, building, and website as did Defendant Twin Cedars," as well as the fact that Little Walker's registration with the Pennsylvania Corporations Bureau of "Twin Cedar Senior Living." (Doc. 51, at 18).
This, however, falls short of providing sufficient factual grounds that "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. It would be speculative, at best, to conclude that Little Walker is under the control of the same officers, directors, and shareholders as Twin Cedars simply because Hamill states that Little Walker is operating the same personal care home facility with the same phone number, address, building, and website. Moreover, a court need not "assume that a . . . plaintiff can prove facts that the plaintiff . . . has not alleged." Associated Gen. Contractors, 459 U.S. at 526. Here, Hamill has not alleged any facts from which we could draw an inference that the identity of the officers, directors, or shareholders is identical between the two corporations.
Furthermore, Hamill does not allege the existence of a single corporation following the transfer. Quite the contrary, she named Twin Cedars as a party to the action and asserted that "Defendant Twin Cedars operates a for-profit senior living facility." (Doc. 17, ¶ 19). While Hamill may be correct that Little Walker is "merely continuing Defendant Twin Cedars' business," (Doc. 51, at 15), the complaint falls short of adequately alleging that Little Walker is a mere continuation of Twin Cedars such that successor liability should be imposed. Thus, the complaint does not sufficiently state a claim against Little Walker as a "mere continuation" of Twin Cedars.
In sum, Hamill has not alleged factual averments that are sufficient to support an inference of successor liability against Little Walker, either under a de facto merger theory or a "mere continuation" theory. Rather, the complaint solely alleges that Twin Cedars continues to operate a senior living facility following Little Walker's purchase of its assets. This is simply not enough to state a claim for successor liability against Little Walker. Thus, we recommend that the motion to dismiss be granted, and the claims against Little Walker be dismissed. Further, we recommend that Little Walker be dismissed with prejudice because, in our view and for the reasons set forth in our analysis above, granting leave to further amend this complaint against Little Walker would be futile since there is no indication that successor liability exists in this case. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) ("Among the grounds that could justify a denial of leave to amend are ..., bad faith, dilatory motive, prejudice, and futility. 'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted").
Finally, because we find that the plaintiff has failed to state a claim for relief against Little Walker, the boilerplate cross-claim set forth by Singer and Twin Cedars in their answer for contribution or indemnification necessarily fails and should be dismissed.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss (Doc. 43) be GRANTED, and that the claims against Defendant Little Walker be dismissed.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 23d day of November 2020.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge