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Jimmie E. Small v. Ww Lodging

March 16, 2012

JIMMIE E. SMALL, PLAINTIFF,
v.
WW LODGING, INC., D/B/A QUINCY TRAVELODGE #162, AND DREW ERWIN, DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED

Friday, 16 March, 2012 03:59:58 PM

Clerk, U.S. District Court, ILCD

ORDER

This matter is before the Court on Magistrate Judge Byron Cudmore's Report and Recommendation [#59]. Therein, the Magistrate Judge recommends that Defendant WW Lodging, Inc., d/b/a Quincy Travelodge #162's ("WW Lodging" or "Defendant") Motion to Dismiss [#53] be allowed. Specifically, the Magistrate Judge recommends that the federal claims in Counts VI, VII, and VIII of the Amended Complaint be dismissed with prejudice and the state law claims be dismissed for lack of jurisdiction.

On March 5, 2012, Plaintiff Jimmie Small ("Small") filed his objection to the Magistrate Judge's Report and Recommendation. See Objection [#62]. Small's filing is difficult to comprehend because he cites to numerous cases but fails to coherently apply the cases to the instant matter. Ultimately, he summarizes his objections as follows:

The short limitation period referred to in the recommendation for dismissal, appears inappropriate to bar Small's 1981 Race discrimination federal claims which are not dependent on Title VII; ADEA or employee-employer relationship. That the 2010 EEOC Right to Sue NOTICE and Hon. J Wolle Order as to Diversity jurisdiction may not be collaterally attacked by Defendant or Magistrate recommendation, lacking findings , power or judicial authority to do so.*fn1

See Objection, p. 22-23. Small argues that the Court should reject the Magistrate Judge's Order insofar as this Court should permit him to correct the deficiencies in his Amended Complaint.

For reasons stated herein, this Court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's Report and Recommendation [#59]. Defendant's Motion to Dismiss is GRANTED. Plaintiff's federal claims contained in Counts VI, VII, and VIII are DISMISSED WITH PREJUDICE. Counts I, II, III, IV, and V are DISMISSED WITHOUT PREJUDICE. Small is given leave to file a second amended complaint that complies with this Order.

Background

The relevant procedural history is sufficiently set forth in the comprehensive Report & Recommendation of the Magistrate Judge. While the Amended Complaint is far from clear, the Magistrate Judge did a formidable job in identifying Small's claims. In sum, Small filed an eight count Amended Complaint including State law counts of breach of contract, breach of covenant of good faith, breach of fiduciary duty, promissory estoppel, and retaliatory discharge. Small further attempted to bring claims arising under Title VII of the Civil Rights Act of 1964 ("Title VII"), Age Discrimination in Employment Act ("ADEA"), Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA"), Fair Labor Standards Act ("FLSA"), and Employee Retirement Income Security Act ("ERISA").

It is important to note that the Magistrate Judge concluded that although Small alluded to diversity jurisdiction in his Amended Complaint, he failed to allege the necessary facts to establish jurisdiction on that basis. As such, the Magistrate Judge treated the federal claims as being brought under federal question jurisdiction and the state law claims as being brought under supplemental jurisdiction. See Report and Recommendation [#59], p 3-4.

Standard of Review

A district court reviews de novo any portion of a magistrate judge's report and recommendation to which written objections have been made. See Fed. R. Civ. P. 72(b). "The district judge may accept, reject, or modify the recommended decision, receive further evidence, ...


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