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Niculcea v. Stone Ridge Towne Center, 1:17-CV-2096. (2019)

Court: District Court, M.D. Pennsylvania Number: infdco20190301f84 Visitors: 15
Filed: Feb. 28, 2019
Latest Update: Feb. 28, 2019
Summary: ORDER CHRISTOPHER C. CONNER , Chief District Judge . AND NOW, this 28th day of February, 2019, upon consideration of the report (Doc. 21) of Magistrate Judge Karoline Mehalchick, recommending that the court (1) conditionally deny defendant's motion (Doc. 12) to dismiss the complaint (Doc. 1) of pro se plaintiff Monica Niculcea ("Niculcea") to the extent the motion seeks dismissal for lack of proper service; (2) hold the motion in abeyance to the extent it seeks dismissal for failure to s
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ORDER

AND NOW, this 28th day of February, 2019, upon consideration of the report (Doc. 21) of Magistrate Judge Karoline Mehalchick, recommending that the court (1) conditionally deny defendant's motion (Doc. 12) to dismiss the complaint (Doc. 1) of pro se plaintiff Monica Niculcea ("Niculcea") to the extent the motion seeks dismissal for lack of proper service; (2) hold the motion in abeyance to the extent it seeks dismissal for failure to state a claim; (3) direct the plaintiff to effect service of the complaint forthwith, and (4) remand for further proceedings, (see Doc. 21 at 8-9), and it appearing that Niculcea has not objected to the report,1 see FED. R. CIV. P. 72(b)(2), and the court noting that failure of a party to timely object to a magistrate judge's conclusions "may result in forfeiture of de novo review at the district court level," Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (citing Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987)), but that, as a matter of good practice, a district court should afford "reasoned consideration" to the uncontested portions of the report, E.E.O.C. v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (quoting Henderson, 812 F.2d at 879), in order to "satisfy itself that there is no clear error on the face of the record," FED. R. CIV. P. 72(b), advisory committee notes, and, following independent review of the record, the court being in agreement with Judge Mehalchick's recommendation, and concluding that there is no clear error on the face of the record, it is hereby ORDERED that:

1. The report (Doc. 21) of Magistrate Judge Mehalchick is ADOPTED. 2. Defendant's motion (Doc. 12) to dismiss is conditionally DENIED to the extent the motion seeks dismissal for insufficient service and is HELD IN ABEYANCE to the extent the motion seeks dismissal for failure to state a claim for which relief may be granted. 3. Plaintiff shall effect service of the summons and complaint no later than 21 days from the date of this order. Failure to properly effect service will result in the court granting defendant's motion to dismiss for insufficient service. 4. This matter is REMANDED to Magistrate Judge Mehalchick for further proceedings.

FootNotes


1. Niculcea filed a request dated February 20, 2019, asking for a three-month extension of time "to prepare my supporting brief and not to deem[] withdrawn my case." (Doc. 22). Because we are holding the motion to dismiss in abeyance to the extent it concerns the merits of Niculcea's claims, we need not address this request at this time. We defer to Judge Mehalchick for resolution of any future request by Niculcea to extend the deadline to effect service.
Source:  Leagle

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