Tunne v. Discover Financial Services, Inc.

Background

The defendants’ motion to dismiss was referred to Magistrate Judge Figueredo. On May 13, 2024, Magistrate Judge Figueredo issued a Report and Recommendation advising that the motion be granted in part and denied in part.

Review of the Recommendation

The district court explained that it must independently review any part of a magistrate judge’s recommendation that a party properly challenges. For portions without timely objections, the court reviews the record for clear error. The Report and Recommendation gave the parties fourteen days to object and warned that failing to object would waive objection rights.

No objections or requests for an extension were filed. The court therefore found that the parties waived their right to object to the recommendation and to obtain appellate review. Even so, the court reviewed the Report and Recommendation and found it well reasoned and supported by the facts and law.

Ruling

Judge Jessica G. L. Clarke adopted the Report and Recommendation in its entirety. The motion to dismiss was therefore granted in part and denied in part. The court directed that, if Mark Tunne chose to do so, he could file a second amended complaint by July 10, 2024.

The court also found that the plaintiff had not made a substantial showing that a constitutional right was denied, so it would not issue a certificate of appealability. A certificate of appealability is a court authorization required for certain appeals. The court further certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was directed to terminate the motion and mail the order to the plaintiff.