Summary
In Smith v. Shelden, 35 Mich. 42, it was said: "We think it much safer to require express authority, when such obligations are contemplated, than to leave one party at liberty to execute at discretion new contracts of this nature, which may postpone for an indefinite period the settlement of their concerns, when a settlement is the very purpose for which he is to act at all."
Summary of this case from Potter v. TolbertOpinion
4:11CV3099
December 05, 2011.
MEMORANDUM AND ORDER
In a memorandum and order entered on October 24, 2011 (filing 14), Magistrate Judge Zwart granted Plaintiff's motion to stay (filing 11) and denied without prejudice Defendants' motion to dismiss (filing 9). On November 3, 2011, Defendants filed a statement of objections (filing 15).
After careful review conducted pursuant to 28 U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72(a), and NECivR 72.2, I find that the challenged order is not clearly erroneous or contrary to law. Although not objected to by the Defendants, Judge Zwart lacked the power to deny the motion to dismiss as opposed to issuing a report and recommendation suggesting that the motion to dismiss be denied.
Without reaching the merits of the motion to dismiss, and particularly the issue of qualified immunity, I now independently decide that the motion to dismiss should be denied without prejudice pending the appeals in the related cases. Since this matter is stayed, and Defendants will not be subjected to discovery or motion practice, there is no harm to Defendants by denying the motion to dismiss without prejudice. In short, it makes sense to await the ruling of the Court of Appeals. Therefore,
IT IS ORDERED:
1. Defendants' statement of objections (filing 15) is denied.
2. The Magistrate Judge's order entered on October 24, 2011 (filing 14), is sustained and shall not be disturbed.