JTH Tax, Inc. v. Hines, No. 2:2015cv00558 - Document 84 (E.D. Va. 2017)

Court Description: ORDER re: 66 Motion to Dismiss; 80 Report and Recommendations. The court does hereby OVERRULE the Defendant's Objections, and ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the R&R of the United States Magistrat e Judge. Plaintiff's Motion is GRANTED without prejudice to the Defendant filing a second amended counterclaim within twenty-one days of the entry of this Order. IT IS SO ORDERED. Signed by Chief District Judge Rebecca Beach Smith and filed on 8/24/17. Copies distributed to all parties 8/24/17.(ldab, )

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JTH Tax, Inc. v. Hines Doc. 84 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division JTH TAX, INC. d/b/a LIBERTY TAX. SERVICE, Plaintiff, CIVIL ACTION NO. V. 2:15cv558 CHARLES HINES, Defendant. ORDER This matter comes before the court on the Motion to Dismiss ("Motion") Inc. and Memorandum in Support filed by Plaintiff JTH Tax, ("JTH Defendant, Tax") on Charles Opposition on June April Hines 16, 14, 2017. ("Mines"), 2017, ECF No. ECF Nos. filed a 77, 66, 67. Memorandum and JTH The in Tax filed a Reply on June 22, 2017. ECF No. 78. On May 20, 2017, Memorandum in Support J. and Krask, this court referred to United States Magistrate Motion and Judge Robert pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, the proposed undersigned applicable, Motion. the and ECF No. district judge recommendations for the and findings to submit to fact, if of disposition of the 68. Dockets.Justia.com The Magistrate ("R&R") on July Judge 19, filed the Report ECF No. 80. 2017. and The Recommendation Magistrate recommended granting the Motion without prejudice. Judge R&R at 1. By copy of the R&R, the parties were advised of their right to file written objections to the the Magistrate Judge. See findings id. at and 11. recommendations made by On August 3, 2017, Hines filed an Objection to the R&R. ECF No. 81. I. Pursuant Procedure, entirety, of the to the Rule Fed. R. Civ. court, to which § recommit the of having the Federal reviewed the Rules of record Civil in its novo determination of those portions the P. 72(b). in whole or in part, or 72(b) shall make a ^ R&R LEGAL STAMDABD Plaintiff has specifically The court may accept, objected. reject, or modify, the recommendation of the magistrate judge, matter to him with instructions. 28 U.S.C. 636(b)(1). II. Plaintiff's alleges Rules that Tax's the of Civil In the R&R, Motion to DISCUSSION Dismiss counterclaim Procedure 8(a), the failed to 8(d)(1), dismiss the amended without prejudice to Hines filing a comply counterclaim with and 10(b). the Magistrate Judge agrees, "motion to amended Federal ECF No. 66. recommending that JTH [counterclaim] be granted second amended counterclaim in an effort to comply with Rules 8(a)(2), 8(d)(1), and 10(b)." R&R at 11. The Magistrate Judge further reconunends that Mines be required to file any second amended counterclaim within twenty-one days from the court's order regarding the R&R and JTH Tax's Motion. Id. In the Objection to the R&R, Mines opposes the Magistrate Judge's recommendation that Plaintiff's Motion be granted. at 8. Instead, denied. Mines Mowever, recommendation, argues Mines to the that agrees extent JTM with that Tax's the Motion should Magistrate filing a Obj. second be Judge's amended counterclaim, "is the proper way to proceed." Id. at 21. Having reviewed the matter ^ the Magistrate Dismiss the Judge's novo, recommendation, the court agrees with that the Motion to counterclaim be granted without prejudice to Mines filing a second amended counterclaim in order to comply with the Federal Rules of Civil Procedure, Judge. R&R at 4. as explained by the Magistrate Accordingly, Mines' Objection is hereby OVERRULED. III. The court, having examined the Objections to the R&R filed by the Defendant, thereto, does CONCLUSION and having made ^ hereby ADOPT AND APPROVE OVERRULE IN FULL the the novo findings with respect Defendant's findings and Objections, recommendations forth in the R&R of the United States Magistrate Judge, July 19, 2017. ECF No. 80. Accordingly, Plaintiff's and set filed on Motion is GRANTED without prejudice to the Defendant filing a second amended counterclaim within twenty-one days of the entry of this Order. The Clerk is DIRECTED to send a copy of this Order to all parties. IT IS SO ORDERED. Is! Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF JUDGE August 24, 2017

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