Opinion
1:21-CV-00219-HAB-SLC
04-25-2023
PETERS BROADCAST ENGINEERING, INC. Plaintiff, v. PEM CONSULTING GROUP. LLC., et al., Defendants.
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND REPORT AND RECOMMENDATION
HOLLY A. BRADY JUDGE
Peters Broadcast Engineering, Inc., (“PBE”) filed this lawsuit against PEM Consulting Group, LLC (PEM), Pyramid Consultants and Construction, LLC. (“Pyramid”), Phillip E. Miller,and two insurers asserting a federal claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and a variety of state law claims. (ECF No. 2). PEM, Pyramid, and Miller asked the Court to dismiss PBE's claims against them in Counts I-VI of the Complaint. (ECF Nos. 45, 46). The parties fully briefed the motion (ECF Nos. 46, 49, and 55). After the close of briefing, PBE moving to supplement its response brief with an exhibit. (ECF No. 61).
As alleged in the Complaint, Miller is the Chief Executive Officer and Managing Member of PEM. The Complaint further asserts that Pyramid is a d/b/a for PEM.
On December 21, 2022, the undersigned referred these motions to the Magistrate Judge to issue a Report and Recommendation (R & R). (ECF No. 81). On April 3, 2023, the Magistrate Judge entered her R & R (ECF No. 85), recommending that PBE's motion to supplement be DENIED and the Motion to Dismiss be granted as to Counts 1 through V but DENIED as to Count VI. The Magistrate Judge also recommended that PBE be granted leave to file an amended complaint. The parties were advised of the 14-day objection period under Fed.R.Civ.P. 72(b). That deadline has passed without any objections filed by the parties.
DISCUSSION
A district court may assign dispositivematters to a magistrate judge, in which case the magistrate judge may submit to the district judge only a report and recommended disposition, including any findings of fact. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). See also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009). The magistrate judge's recommendation on a dispositive matter is not a final order, and the district judge makes the ultimate decision to “accept, reject, or modify” the findings and recommendations, and the district court need not accept any portion as binding. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). See also Schur, 577 F.3d at 760-61.
Whether a matter is dispositive or non-dispositive is determined by reference to 28 U.S.C. § 636(b)(1)(A), which gives magistrate judges the power “to hear and determine any pretrial matter” with certain exceptions. See Adkins v. Mid-Am. Growers, Inc., 143 F.R.D. 171, 176 (N.D. Ill. 1992) (“‘Dispositive' is merely a term used to describe the motions listed in subsection 636(b)(1)(A) ....”).
After a magistrate judge makes a report and recommendation, either party may object within fourteen days of being served with a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). When a party raises specific objections to findings and recommendations made within the magistrate judge's report, the district court is required to review those objections de novo, determining for itself whether the magistrate judge's decisions as to those issues are supported by substantial evidence or were the result of an error of law. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The court may, however, defer to those conclusions to which timely objections have not been raised by a party. Schur, 577 F.3d at 760-61. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson, 170 F.3d at 739.
As recounted above, the parties have not objected to the recommended disposition of the pending motions and, for good reason. The Magistrate Judge issued a thorough 29-page decision resolving the parties' motions. The court has reviewed the record in this case and finds that the R & R is not clearly erroneous. Accordingly, the Court adopts in its entirety Magistrate Judge Collins' recommended dispositions of the motions.
CONCLUSION
The Report and Recommendation (ECF No. 85) is ADOPTED IN ITS ENTIRETY with the following dispositions of the pending motions:
a. Plaintiff's motion for leave to file a supplement to its response (ECF No. 61) is DENIED;
b. Defendants' Motion to Dismiss (ECF 45) is GRANTED as to Counts 1 through V pursuant to Fed.R.Civ.P. 12(b)(6) but DENIED as to Count VI under Fed.R.Civ.P. 12(b)(1);
c. PBE is GRANTED leave to file an amended complaint by May 16, 2023.
SO ORDERED.