United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH, CHIEF JUDGE
matter comes before the court on the Motion for Partial
Judgment on the Pleadings ("Motion"), filed by the
Plaintiff on January 18, 2C18. ECF No. 37. The matter was
referred to a United States Magistrate Judge by Order of
February 8, 2018, pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), and Federal Rule of Civil Procedure
72(b), to conduct hearings, including evidentiary hearings,
if necessary, and to submit to the undersigned proposed
findings of fact, if applicable, and recommendations for the
disposition of the Motion. ECF No. 43.
United States Magistrate Judge filed a Report and
Recommendation ("R&R") on March 2, 2018. ECF
No. 45. The Magistrate Judge recommended that (1) the
Plaintiff's Motion be denied, and (2) the Defendants'
affirmative defense of failure to mitigate damages be
stricken from the Answer. R&R at 17-18.
of the R&R, the parties were advised of their right to
file written objections to the findings and recommendations
made by the Magistrate Judge. Id. at 18. On March
14, 2018, the Plaintiff filed four objections to the R&R.
ECF No. 46. On March 27, 2018, the Defendants responded to
the Plaintiff's objections. ECF No. 50.
Plaintiff's first objection states: "In an abundance
of caution and pursuant to 28 U.S.C. § 636(b)(1)(C),
Gradillas objects to any interpretation of any ruling or
finding as dispositive of any issue in the case adverse to
Gradillas." Pl's Obj. ¶ 1. However, courts in
this jurisdiction and elsewhere in the country have
repeatedly stated that "[s]ection 636(b)(1) does not
countenance a form of generalized objection to cover all
issues addressed by the magistrate judge; it contemplates
that a party's objection to a magistrate judge's
report be specific and particularized. ..." United
States v. Midgette, 478 F.3d 616, 621-22 (4th Cir.
2007); see also Page v. Lee, 337 F.3d 411, 416 n.3
(4th Cir. 2003) (“[P]etitioner's failure to object
to the magistrate judge's recommendation with the
specificity required by the Rule is, standing alone, a
sufficient basis upon which to affirm the judgment of the
district court . . . ."); Howard v. Sec'y Health
& Human Servs., 932 F.2d 505, 509 (6th Cir. 1991);
Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va.
2008). Therefore, general objections to the entirety of a
magistrate judge's R&R need not be considered.
Howard, 932 F.2d at 509. Such objections are a
"waste " of "judicial resources" and
undermine "the district court's effectiveness based
on help from magistrate judges." Midgette, 478
F.3d at 622.
the Plaintiff goes on to provide more particularized
objections, the court finds that those objections are also
without merit. First, the Plaintiff's argument that
"[t]he 2012 Engagement Letter did not apply to any
project after the one Cherry, Bekaert & Holland L.L.P was
hired for in 2012, " rests upon its claim that the
parties executed another contract, "orally, by course of
conduct, " to govern the 2017 bid. Pl's Obj. ¶
2; see Compl. ¶ 57, ECF No. 1-2. The Defendants deny the
existence of such an oral contract, and by way thereof, their
obligation to have submitted the Plaintiff's bid.
See Answer ¶ 57, ECF No. 24; Defs.' Resp.
¶ 2. Because, as alleged, the terms of the contract at
issue were oral and thus evade proof by exhibit or
attachment, and because the Defendants dispute the terms of
said contract, Defs.' Resp. ¶ 2, the matter is
inappropriate for determination in a motion for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c).
See, e.g., Drager v. PLIVA USA, Inc., 741
F.3d 470, 474 (4th Cir. 2014) ("A Rule 12(c) motion
tests only the sufficiency of the complaint and does not
resolve . . . any disputes of fact.").
Plaintiff also objects to the Magistrate Judge's
determination that Virginia law governs the contract under
the applicable choice of law rules. Pl's Obj. ¶ 3.
In so doing, the Plaintiff merely contends that the location
of the "'omission' . . . for purposes of [the]
choice of law determination is a disputed issue of fact which
has yet to be fully briefed for determination." Pl's
Ob j . ¶ 3. However, the Plaintiff had ample opportunity
to brief the issue before the United States District Court
for the District of Columbia, where it filed not only a
motion objecting to the transfer to this court, but also it
filed and received reconsideration of that motion. ECF Nos.
13, 17, 21.
Plaintiff has provided no facts to cast doubt on the
conclusions reached by the District Court for the District of
Columbia, which were assessed and confirmed also by a
Magistrate Judge of this court and now on de novo
review by the undersigned. See R&R at 7; Judge
Beryl A. Howell's Mem. & Order at 4, ECF No. 21
("In this case, ... no documents [for the bid] were
actually timely filed in Washington, and the failure to make
a timely submission occurred in the Eastern District of
Virginia .... The defendants are based in Virginia and
maintain no offices in Washington, while the Plaintiff is
based in California."). Accordingly, this objection has
the Plaintiff "objects" that "the
[c]ourt's statement ' [t]he specific acts include at
least the company's [Gradillas] failure to timely provide
data necessary for Cherry Bekaert's work, '"
should not constitute a factual finding adverse to Gradillas.
Pl.'s Obj. i 4. The Plaintiff's objection relies on a
misreading of the R&R. The statement to which the
Plaintiff refers does not constitute a finding of fact, but
rather identifies the specific allegation made by
the Defendants that place the Plaintiff on notice of the
affirmative defense of assumption of risk. R&R at 16. A
finding of fact remains open as to this allegation.
court, having examined the objections by the Plaintiff to the
R&R and having made de novo findings with respect
thereto, does hereby AOPT AD APPROV IN FLL
the findings and recommendations set forth in the R&R of
the United States Magistrate Judge filed March 2, 2018.
Accordingly, the Plaintiff's Motion for Partial Judgment
on the Pleadings is hereby DENIED, and the
Defendants' affirmative defense of failure to mitigate
damages is STRICKN from the Defendants'
Clerk shall forward a copy of this Order to Counsel for the