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Welch v. FCA U.S. LLC

United States District Court, W.D. Virginia, Roanoke Division

September 27, 2016

TONY P. WELCH, Plaintiff,
FCA U.S. LLC, Defendant.


          Michael F. Urbanski United States District Judge.

         Before the court are various motions related to four claims filed by Plaintiff Tony P. Welch ("Welch"), proceeding pro se, [1] against FCA U.S. LLC ("FCA") related to a 2004 Dodge Durango (the "Vehicle") purchased by Welch from an undisclosed seller in New Jersey in 2013. Welch's complaint alleges (I) Violation of the Motor Vehicle Manufacturer's Warranty Adjustment Act, Va. Code § 59.1-207, (II) Violation of the National Traffic and Motor Safety Act, 49 U.S.C. § 301, (III) Unjust Enrichment, and (IV) Breach of Warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301. FCA filed a motion to dismiss the complaint in its entirety. ECF No. 12.[2] The Court referred FCA's motion to United States Magistrate Judge Robert S. Ballou pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation ("R&R"). The magistrate judge issued an R&R recommending that FCA's motion be granted, Welch's claim be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) or alternatively transferred to the East District of New York. ECF No. 31.

         Since the issuance of the R&R, Welch has filed several related motions that the court will address in this memorandum opinion. First, Welch filed a document containing objections to the R&R and "Subsequent Motion for Leave to Amend Original Complaint." ECF No. 32. Welch then filed a Motion to Strike, asking that his previous motion to amend his original complaint be withdrawn. ECF No. 33. Finally, Welch filed a "Motion for Immediate Temporary Injunction to Stay Proceedings in Order to Substitute with the Proper Plaintiff in which Welch seeks to substitute the United States Attorney General as the plaintiff as to Count II, which alleges violations of 49 U.S.C. § 301. ECF No. 35. FCA has filed a response to Welch's objections. ECF No. 36.


         Before addressing the merits of Welch's objections to the R&R, the court will first consider Welch's subsequent motions to clarify the motions currently pending before the court.


         Welch's motion for a temporary injunction so that the Attorney General of the United States can be substituted as the plaintiff in Count II, alleging violations of 49 U.S.C. § 301, ECF No. 35, is DENIED. As properly explained by the magistrate judge and conceded by Welch, only the Attorney General may bring claims arising under 49 U.S.C. § 301, and the statute does not create a private right of action. ECF No. 31, at 6-7; ECF No 35. Because only the Attorney General can brings claims arising under 49 U.S.C. § 301, Welch is not entitled to a temporary injunction during which the Attorney General can intervene in this lawsuit. Accordingly Welch's motion for an injunction, ECF No. 35, is DENIED.


         Welch's Motion to Strike, ECF No. 33, seeks withdrawal of his previously filed motion to amend his complaint filed with his objections to the R&R in ECF No. 32. Welch's Motion to Strike, ECF No. 33, is GRANTED. Accordingly the Court will consider ECF No. 32 only to the extent it objects to the R&R.


         Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and file specific, written objections" to a magistrate judge's proposed findings and recommendations within fourteen days of being served with a copy of the report. See also 28 U.S.C. § 636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette. 478 F.3d 616, 622 (4th Cir.), cert denied. 127 S.Ct. 3032 (2007).

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.

Id. The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). "General objections that merely reiterate arguments presented to the magistrate judge lack the specificity required under Rule 72, and have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Technologies. Inc.. 742 F.Supp.2d 827, 829 (W.D. Va. 2010), affd, 498 F.App'x 268 (4th Or. 2012) (citing Veney v. Astrue. 539 F.Supp.2d 841, 845 (W.D. Va. ...

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