Opinion
CRIMINAL ACTION 5:23-CV-048-CHB-MAS
07-17-2023
HAI JUNG EMILY KIM, Plaintiff, v. AMPLER BURGERS OHIO LLC, d/b/a BURGER KING, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
This matter is before the Court on the Report and Recommendation filed by United States Magistrate Judge Matthew A. Stinnett, [R. 30]. The Report and Recommendation addresses the Motion to Dismiss, [R. 19], filed by Defendant Union Insurance Company (“Union”), in which Union asks the Court to dismiss Count II of the Amended Complaint, [R. 15]. Plaintiff Hai Jung Emily Kim failed to respond to the Motion to Dismiss. However, the Court ordered Plaintiff to advise whether she objected to dismissing Count II, [R. 22], and Plaintiff filed a Notice of her formal objection, [R. 23]. The Court thereafter referred the Motion to Dismiss to Magistrate Judge Stinnett pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. [R. 24]. Magistrate Judge Stinnett filed his Report and Recommendation on June 30, 2022. [R. 30]. No objections have been filed and the time to do so has expired. For the reasons set forth below, the Court will adopt the Report and Recommendation, id., and will grant the Motion to Dismiss, [R. 19].
The Notice states, in full, “Comes now the Plaintiff, HAI JUNG EMILY KIM, by and through undersigned counsel, and pursuant to the Order of this Court entered May 26, 2023, hereby gives notice of her formal objection to dismissing Count II of her First Amended Complaint.” [R. 23].
In his Report and Recommendation, Magistrate Judge Stinnett first details the factual allegations of Plaintiff's Amended Complaint, [R. 15], including her claim for general negligence against Defendant Ampler Burgers Ohio, LLC and her claim for violation of Kentucky's Unfair Claims Settlement Practices Act (“KUCSPA”) against Defendant Union. [R. 30, pp. 1-2]. The Magistrate Judge also addresses the standard for reviewing a Rule 12(b)(6) motion to dismiss, id. at 2, and the elements required to allege a KUCSPA bad faith claim. Id. at 2-3 (explaining the three-element test set forth in Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993)). Magistrate Judge Stinnett goes on to explain why Plaintiff's allegations fail to satisfy each of the three essential elements of the Wittmer test. Id. at 3-7.
The Report and Recommendation advised the parties that any objections must be filed within fourteen days. [R. 30, p. 8] The time to file objections has passed, and neither party has filed any objections to the Report and Recommendation nor sought an extension of time to do so.
Generally, this Court must make a de novo determination of those portions of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). When no objections are made, this Court is not required to “review . . . a magistrate's factual or legal conclusions, under a de novo or any other standard.” See Thomas v. Arn, 474 U.S. 140, 151 (1985). Parties who fail to object to a Magistrate Judge's recommended disposition are also barred from appealing a district court's order adopting that recommended disposition. United States v. White, 874 F.3d 490, 495 (6th Cir. 2017); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Nevertheless, this Court has examined the record and agrees with the Magistrate Judge's Report and Recommendation. Accordingly, the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED as follows:
1. The Magistrate Judge's Report and Recommendation [R. 30] is ADOPTED as the opinion of this Court.
2. Defendant Union Insurance Company's Motion to Dismiss, [R. 19], is GRANTED.
3. Count II of Plaintiff's Amended Complaint, [R. 15], is DISMISSED WITHOUT PREJUDICE.