Opinion
CIVIL ACTION NO. 6:15-0449
06-24-2015
HEATHER NICOLE SCANLAN v. MICHAEL NEUSTROM, ET AL
JUDGE HAIK
REPORT AND RECOMMENDATION
Pending before the undersigned for Report and Recommendation is the Rule 12(b) Motion to Dismiss and/or Rule 12(e) Motion for More Definite Statement of Defendants, Michael W. Neustrom, Individually and in his Official Capacity, Joey Graciana, Jill Birkenmier, Matthew MeGinley and John Sullivan, filed on May 4, 2015. [rec. doc. 11]. Plaintiff, Heather Nicole Scanlan, for and on behalf of the minor children R.J.M. and R.J.M., filed opposition on May 26, 2015. [rec. doc. 13]. Oral argument was held on May 24, 2015, after which the undersigned took the motion under advisement.
For the reasons set forth on the record, IT IS RECOMMENDED as follows:
Plaintiff represented at the hearing that not all defendants have been served and discovery has not yet commenced. Thus, she does not have sufficient information in which to amend her pleading at this time. Accordingly, IT IS RECOMMENDED that the Rule 12(b) Motion to Dismiss or, alternatively, the Rule 12(b) Motion to Dismiss and/or Rule 12(e) Motion for More Definite Statement be DENIED as premature, subject to defendants' right to reurge the motion.
At the hearing, the parties agreed that plaintiff is not entitled to punitive damages against Sheriff Neustrom in his official capacity. Accordingly, IT IS RECOMMENDED that the plaintiff's claim for punitive damages be DISMISSED.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and F.R.Civ.Proc. 72(b), parties aggrieved by this recommendation have fourteen (14) business days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FACTUAL FINDINGS AND/OR THE PROPOSED LEGAL CONCLUSIONS REFLECTED IN THIS REPORT AND RECOMMENDATION WITHIN FOURTEEN (14) DAYS FOLLOWING THE DATE OF ITS SERVICE, OR WITHIN THE TIME FRAME AUTHORIZED BY FED.R.CIV.P. 6(b) , SHALL BAR AN AGGRIEVED PARTY FROM ATTACKING THE FACTUAL FINDINGS OR THE LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT COURT, EXCEPT UPON GROUNDS OF PLAIN ERROR. DOUGLASS V. UNITED SERVICES AUTOMOBILE ASSOCIATION , 79 F.3D 1415 (5TH CIR. 1996).
Signed at Lafayette, Louisiana on June 24, 2015.
/s/_________
C. MICHAEL HILL
UNITED STATES MAGISTRATE JUDGE