ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

This cause comes before the Court on the Report and Recommendation of Magistrate Judge Gregory J. Kelly, filed on May 30, 2014 (Doc. 38). In the Report and Recommendation, Magistrate Judge Kelly recommends that Respondent Lonny A. Mead's ("Mead") Motion to Dismiss and/or Motion for Summary Judgment ("Motion") (Doc. 15) be denied. See Doc. 38. No party has objected to the Report and Recommendation and the time to do so has expired.

The Court is in agreement with the Magistrate Judge that, to the extent the Motion seeks dismissal under Federal Rule of Civil Procedure 12(b), any right thereto has been waived because Mead filed his Motion contemporaneously with his answer, in contravention of Rule 12(b)'s requirement that a motion to dismiss be filed before the responsive pleading. See Doc. 38 at 4-5; Fed. R. Civ. P. 12(b). The Court also agrees that, to the extent the Motion seeks summary judgment under Rule 56, the Motion must be denied as premature because discovery is still ongoing. See Doc. 38 at 5-6. Finally, the Court agrees that summary judgment is inappropriate because genuine issues of material fact exist as to what acts of negligence or conditions of unseaworthiness, if any, caused Mead's injuries and whether Petitioner Charles C. Walker had privity or knowledge of those acts of negligence or conditions of unseaworthiness. See id. at 6-7. Therefore, after careful consideration of the Report and Recommendation of the Magistrate Judge, in conjunction with an independent examination of the court file, the Court is of the opinion that the Magistrate Judge's Report and Recommendation should be adopted, confirmed, and approved in all respects.

Accordingly, it is hereby ORDERED:

DONE and ORDERED.