Summary
adopting a Report and Recommendation to dismiss a MMWA claim under § 2311(d) where the plaintiff had brought express-warranty and implied-warranty claims related to weight-loss supplements and citing multiple cases as reaching the conclusion that "the label of the product at issue is ‘governed’ under the FDCA, and therefore the Magnuson-Moss Warranty Act is ‘inapplicable’ "
Summary of this case from In re Zantac (Ranitidine) Prods. Liab. Litig.Opinion
Civil Action No. 14-cv-02881-CMA-MJW
05-15-2015
RAMONA JASPER, a/k/a Nika Raet Bey, on behalf of herself and all others similarly situated, Plaintiff, v. MUSCLEPHARM CORPORATION, Defendant.
ORDER AFFIRMING APRIL 9, 2015 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the April 9, 2015 Recommendation by United States Magistrate Judge Michael J. Watanabe that Plaintiff's first claim for relief under the Magnuson-Moss Warranty Act be dismissed under Rule 12(b)(6), but that the motion be denied in all other respects. (Doc. # 56.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 56.) Despite this advisement, no objections to Magistrate Judge Watanabe's Recommendation were filed by either party.
"In the absence of timely objection, the district court may review a magistrate [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.")).
The Court has reviewed all the relevant pleadings concerning Defendant's Motion to Dismiss and the Recommendation. Based on this review, the Court concludes that Magistrate Judge Watanabe's thorough and comprehensive analyses and recommendations are correct and that "there is no clear error on the face of the record." Fed. R. Civ. P. 72, advisory committee's note. Therefore, the Court ADOPTS the Recommendation of Magistrate Judge Watanabe as the findings and conclusions of this Court.
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate Judge (Doc. # 56) is AFFIRMED and ADOPTED. It is
FURTHER ORDERED that Defendant's Motion to Dismiss (Doc. # 25) is GRANTED to the extent Plaintiff's first claim for relief under the Magnuson-Moss Warranty Act be dismissed pursuant to Rule 12(b)(6), and DENIED in all other respects.
DATED: May 15, 2015
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge