Civil Action No. 11-CV-14086
HON. MARK A. GOLDSMITH
ORDER (1) ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION
IN PART, (2) DISMISSING DEFENDANT'S MOTION TO DISMISS AS MOOT, AND
(3) PERMITTING PLAINTIFF'S 8/13/12-FILED AMENDED COMPLAINT
This matter is presently before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Komives, entered on July 13, 2012. Dkt. 17. The R&R concludes that Plaintiffs instant complaint (Dkt. 1-1) fails to state a claim, and is subject to dismissal. The R&R also notes Plaintiff's request to amend the instant complaint, and ultimately recommends that Defendant's motion to dismiss (Dkt. 2) be granted without prejudice to Plaintiff filing an amended complaint within a set amount of time. Neither party has filed objections to the R&R and the time to do so has expired. Thus, the parties have waived any further right to appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985).
Although the Court agrees completely with the analysis and recommendation of the R&R, subsequent events prevent the Court from adopting it outright. On August 13, 2012, Plaintiff filed an amended complaint. Dkt. 18. As the amended complaint has already been filed, the Court need not grant the motion to dismiss without prejudice to the Plaintiff filing an amended complaint at some point in the future. Thus, the Court will instead:
(i) accept Plaintiff's amended complaint (Dkt. 18),(ii) dismiss the pending motion to dismiss (Dkt. 2) as moot, without prejudice to Defendant re-filing a motion to dismiss addressing the amended complaint, and
(iii) accept the and adopt the R&R (Dkt. 17) in part.
Dated: August 24, 2012
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on August 24, 2012.
DEBORAH J. GOLTZ