Faulkenberry v. Novant Health Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:23-CV-163-RJC-DCK
THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion To Dismiss With
Prejudice Pursuant To F.R.C.P. 12 (B)(1), (B)(4), (B)(5) And (B)(6), Answer And Affirmative
Defenses To Plaintiff’s Complaint” (Document No. 17), and “Defendant’s Motion For Extension
Of Time To File Memorandum In Support Of Its Motion To Dismiss...” (Document No. 18), filed
August 20, 2024. These motions have been referred to the undersigned Magistrate Judge pursuant
to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered the
motions and the record, respectfully, the undersigned will recommend that the motion to dismiss
be denied without prejudice and will order that the motion for extension of time be denied.
On August 20, 2024, Defendant’s counsel filed the pending motions (Document Nos. 17
and 18), as well as Notices of Appearance (Document Nos. 14 and 15) and “Defendant Novant
Health, Inc.’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1), (b)(4), (b)(4), (b)(5), And
(b)(6), Answer And Affirmative Defenses To Plaintiff’s Complaint” (Document No. 16).
Defendant’s request for leave to file a brief in support of the filed motion to dismiss twenty-one
(21) days later is unusual and inconsistent with the Local Rules of this Court. (Document No. 18).
EBONY JOI FAULKENBERRY, )
) MEMORANDUM AND
Plaintiff, )
)
RECOMMENDATION
AND ORDER
v. )
)
NOVANT HEALTH INC., )
)
Defendant. )
)
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The undersigned notes the Local Rules state that “[a] brief must be filed
contemporaneously with the motion” and that “[a] party seeking a decision on any preserved
motion must file a separate motion and supporting brief.” LCvR 7.1(c) (emphasis added).1
There does not appear to be any good reason Defendant cannot file a brief contemporaneously
with its motion – whether that occurs this week or three weeks from now. As such, the undersigned
finds that the pending motions should be denied, without prejudice to Defendant filing a motion
to dismiss and supporting memorandum at a later date, if necessary.
Although consultation between the parties is not required, the undersigned respectfully
suggests that parties confer in a good faith attempt to resolve this case or narrow the issues, prior
to any further motions practice. See LCvR 7.1(b).
RECOMMENDATION AND ORDER
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendant’s Motion To Dismiss...” (Document No. 17) be DENIED WITHOUT PREJUDICE.
IT IS ORDERED that “Defendant’s Motion For Extension Of Time To File Memorandum
In Support Of Its Motion To Dismiss...” (Document No. 18) is DENIED.
TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14) days
of service of same. Responses to objections may be filed within fourteen (14) days after service
of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and
Recommendation with the District Court constitutes a waiver of the right to de novo review by the
1 Defendant’s counsel is respectfully advised to review the Local Rules prior any additional filing in this
case.
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District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v.
Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude
the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue
in a magistrate judge’s report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection.’” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED AND ORDERED.
Signed: August 21, 2024
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