United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
pending before the Court is a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Robert W. Trumble. ECF No. 4. Pursuant to this
Court's Local Rules and 28 U.S.C. § 636(b)(1)(b),
this action was referred to Magistrate Judge Trumble for
submission of an R&R. On June 1, 2018, Magistrate Judge
Trumble issued his R&R, recommending that this Court
dismiss the action without prejudice and deny the concurrent
application to proceed in forma pauperis.
29, 2018, the Plaintiff filed an Ex Parte Emergency
Application Instanter for Stay of Proceedings to Enforce a
Judgment Pending the Filing of a Motion to Grant Relief to be
Concurrent with an Application to Proceed Informa Pauperis.
ECF No. 1. In his motion, the Plaintiff requests that the
Court stay the collection of tax judgments against him in
Virginia and Maryland. ECF No. 1 at 13-14. Magistrate Judge
Trumble recommended that the motion be denied and the action
be dismissed without prejudice.
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a plaintiff's right
to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, objections to Magistrate
Judge Trumble's R&R were due within fourteen days
after being served with a copy of the same. The R&R was
sent to the Plaintiff by certified mail, return receipt
requested, on June 1, 2018. ECF No. 4. The Plaintiff filed
objections on June 11, 2018. ECF No. 5. Accordingly, this
Court will review the portions of the R&R to which the
Plaintiff objects de novo.
the R&R analyzes the motion as one for injunctive relief,
the Plaintiff's primary objection to the R&R is that
his motion is one for relief under Federal Rule of Civil
Procedure Rule 62(b)(4). Accordingly, this Court will accept
Magistrate Judge Trumble's R&R in so far as it
reviews the motion as a motion for injunctive relief and will
undertake de novo review of the Plaintiff's
motion as a Rule 62(b)(4) Motion.
62(b)(4) of the Federal Rules of Civil Procedure permits the
court to stay the execution of any judgment pending the
disposition of a motion under Rule 60. Fed.R.Civ.P. 62(b)(4).
Rule 60 states that a court may relieve a party from a final
judgment for a variety of reasons including, “any other
reason that justifies relief.” Fed.R.Civ.P. 60(b).
Thus, in sum, a motion under Rule 62(b)(4) allows the court
to stay a judgment pending the disposition of a motion for
relief from the final judgment, order, or proceeding.
instant case, the Plaintiff has not filed a motion for relief
from a judgment or an order under Rule 60. Accordingly, the
motion to stay proceedings under Rule 62(b)(4) is premature.
Moreover, because this Court did not render the initial
judgment from which the Plaintiff appeals, this action is an
independent action not governed by Rule 60. Therefore,
whether the motion is analyzed as a motion for injunctive
relief-as done in the R&R without objection-or as a
motion under Rule 62(b)(4)-as done in this Order- the motion
does not provide a ground for relief.
upon review and finding no error, the Court
ORDERS Magistrate Judge Trumble's Report
and Recommendation [ECF No. 4] be ADOPTED
for the reasons more fully stated therein. The
Plaintiff's objections [ECF No. 5] are
OVERRULED. Accordingly, the Court hereby
ORDERS that the Plaintiff's Application
[ECF No. 1] be DENIED and that this action
be DISMISSED WITHOUT PREJUDICE.
Court DIRECTS the Clerk to strike this case
from the active docket and transmit a copy of this Order to
the pro se Plaintiff by ...