The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Monday, 13 February, 2012 11:33:06 AM
Clerk, U.S. District Court, ILCD
On January 13, 2012, Magistrate Judge David G. Bernthal filed a Report and Recommendation (#46) in this case. Judge Bernthal recommended that Defendants' Motion to Dismiss Plaintiff's Complaint (#15) be granted in part and denied in part. Specifically Judge Bernthal recommended: (1) that Counts IV and VI of Plaintiff's Complaint be dismissed without prejudice; and (2) the Motion to Dismiss with regards to the remaining counts (I, II, III, and V) should be denied. On January 27, 2012, Defendants filed an Objection (#47). In the Objection, Defendants argued that this court should reject the Report and Recommendation because: (1) Plaintiff's Complaint should be dismissed in its entirety because Plaintiff has not adequately supported its allegation of the amount in controversy with competent proof; and (2) Counts I, II, III and V of Plaintiff's Complaint failed to adequately state a valid claim under Illinois law. Plaintiff did not file an objection to the Report and Recommendation within the time allowed. Therefore, because no objection to the recommendation to dismiss Counts IV and VI without prejudice was filed within fourteen days after being served with a copy, as allowed by 28 U.S.C. § 636(b)(1), any objection to this court's dismissal of Counts IV and VI has been waived on appeal. See Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).
This court has carefully reviewed Judge Bernthal's Report and Recommendation (#46) and considered each of the arguments contained in Defendants' Objection (#47). Following this careful and thorough review, this court agrees with and accepts Judge Bernthal's Report and Recommendation. First, Defendants argue at length that Judge Bernthal's Recommendation was contrary to the legal certainty test because Plaintiff failed to support its allegation of the amount in controversy with competent proof. Although Plaintiff has not provided an exact calculation of how each of its claimed damages were determined, this court agrees with Judge Bernthal that Plaintiff has provided competent proof*fn1 to support its claimed damages. It does not appear to this court that it is a legal certainty that the Plaintiff's claim is actually for less than the jurisdictional amount.*fn2 Second, this court agrees with Judge Bernthal that the Plaintiff's Complaint satisfies the requirements of Federal Rule of Civil Procedure 8. Finally, this court agrees with Judge Bernthal's finding that Plaintiff has satisfied its pleading burden of providing fair notice of Counts I, II, III and V and the grounds upon which they rest, and that the claim for relief is plausible on its face for each of these Counts.
IT IS THEREFORE ORDERED THAT:
(1) The Report and Recommendation (#46) is accepted by this court.
(2) Defendants Motion to Dismiss (#15) is GRANTED in part and DENIED in part. Accordingly, Counts IV and VI are DISMISSED.
(3) Defendants' answer to Counts I, II, III and V of Plaintiff's Complaint is due by March 5, 2012.