Summary
finding excusable neglect because the delay resulted from the difficulty of locating defendants rather than oversight or neglect by plaintiff
Summary of this case from Metcalf v. City of MinneapolisOpinion
CIVIL CASE NO. 3:06cv178.
November 28, 2007
Haley M. Jonas, John W. Taylor, Charlotte, NC, for Plaintiff.
Matthew Kasey Ratliff, Strasburger Price LLP, Frisco, TX, Todd A. King, Cranfill, Sumner Hartzog, L.L.P., Joshua Blake Durham, Poyner Spruill LLP, Charlotte, NC, for Defendants.
ORDER
THIS MATTER is before the Court on the Magistrate Judge's Memorandum and Recommendation, filed on November 1, 2007.
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation of this Court, United States Magistrate Judge David C. Keesler was designated to consider certain pending motions in the above-captioned civil action and to submit to this Court a recommendation for the disposition of these motions.
On November 1, 2007, the Magistrate Judge filed a Memorandum and Recommendation [Doc. 39] in this case containing proposed findings of fact and conclusions of law in support of a recommendation regarding the Motion to Dismiss [Doc. 13] and the Renewed Motion to Dismiss [Doc. 24] filed by the Defendant Sterling and King, Inc. The parties were advised that any objections to the Magistrate Judge's findings were to be filed in writing within ten (10) days of service of the Recommendation. The period within which to file objections expired on November 16, 2007. No written objections to the Memorandum and Recommendation have been filed.
After a careful review of the Magistrate Judge's Recommendation, the Court finds that the proposed findings of fact are supported by the record and that the proposed conclusions of law are consistent with current case law. Accordingly, the Court hereby accepts the Magistrate Judge's Recommendation [Doc. 39] that the Motion to Dismiss [Doc. 13] and the Renewed Motion to Dismiss [Doc. 24] filed by the Defendant Sterling and King, Inc. should be granted as to the Plaintiff's fourth cause of action and denied as to the Plaintiff's second, third, and fifth causes of action, as well as to the Defendant's arguments for dismissal based on lack of jurisdiction and insufficient process. IT IS, THEREFORE, ORDERED that the Defendant Sterling and King, Inc.'s Motion to Dismiss [Doc. 13] and Renewed Motion to Dismiss [Doc. 24] are GRANTED IN PART and DENIED IN PART. The motions are GRANTED with respect to the Plaintiff's fourth cause of action. In all other respects, the motions are DENIED.