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Ehrenberg v. Lisk Trucking, Inc.

Ehrenberg v. Lisk Trucking, Inc.
United States District Court for the Middle District of Pennsylvania
November 8, 2018, Decided; November 8, 2018, Filed
Civil No. 3:18-CV-007

Reporter
2018 U.S. Dist. LEXIS 192287 *
CHARLES EHRENBERG, et al., Plaintiff, v. LISK TRUCKING, INC., et al., Defendants.

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case
This case arises out of a 32-vehicle fatality accident which occurred on March 3, 2017. The circumstances surrounding this accident are described in a 32-page, 77-paragraph complaint filed by the plaintiffs. (Doc. 1.) The complaint alleges that on March 3, 2017, Luther Morris, who was employed by Lisk Trucking, Inc., was transporting a tanker semi-trailer on Interstate 81 in Schuylkill County, Pennsylvania. According to the plaintiffs: “On March 3, 2017, since at least 1:00 p.m., at Mile Marker 130 on Interstate 81-North, drivers were made aware [*2] of hazardous road conditions by a PennDot Dynamic Message Sign expressly stating: ‘Snow squalls possible. Watch for changing conditions.'” (Id., ¶ 27.) Despite this explicit warning of adverse weather conditions, it is alleged that Morris, acting as Lisk’s agent, operated this tractor trailer in an unsafe fashion which violated state traffic laws and federal highway safety regulations. As a result, the tractor trailer jack-knifed and struck another vehicle. The Plaintiffs, Charles M. Ehrenberg, Deceased, Charles R. Ehrenberg and Raymond Neikam were traveling together in a northbound direction behind this tractor trailer. Their pick-up truck then collided with the jack-knifed tractor trailer operated by Morris and owned by Lisk, resulting in the death of Charles M. Ehrenberg, and serious injuries to Charles R. Ehrenberg and Raymond Neikam.
The complaint filed in this matter contains a specific and detailed description of the ways in which Lisk and Morris acted in what is alleged to have been a reckless and grossly negligent fashion. Indeed, fairly construed, the complaint cites more than a dozen aggravating circumstances in this case. In particular, according to the complaint Morris [*3] and Lisk: (1) operated this commercial vehicle at a speed greater than existing conditions would allow; (2) failed to operate this commercial motor vehicle at a speed commensurate with the existing conditions; (3) ignored warnings of hazardous weather conditions; (4) failed to use appropriate caution as required under the Federal Motor Carriers Safety Regulations; (5) failed to use “extreme caution” in the operation of the commercial vehicle when facing hazardous conditions which adversely effected visibility and traction; (6) failed to discontinue the use of the operation of the commercial motor vehicle in response to hazardous weather conditions; (7) failed to operate the commercial vehicle to the nearest point which could have been reached safely; (8) failed to properly observe and react to prevailing weather conditions; operated the commercial vehicle on a public roadway when it was unsafe to do so given weather conditions; (9) failed to remain alert; (10) travelled at an excessive rate of speed under the circumstances; (11) failed to remain within the designated lanes of travel for northbound traffic on Interstate 81; (12) violated the applicable rules, regulations and laws pertaining [*4] to the safe and proper operation of commercial motor vehicles and tanker units; (13) failed to operate the tanker unit in accordance with the Federal Motor Carrier Safety Regulations; (14) violated their duties in hazardous weather conditions, including, but not limited to those legal duties prescribed by Section 392.14 of the Federal Motor Carrier Safety Regulations; (15) lost control of the tanker unit; (16) failed to take evasive action in order to avoid striking the already disabled vehicles; (17) violated both the written and unwritten policies, rules, guidelines and regulations of the Defendant, Lisk Trucking Inc.; and (18) violated the Federal Motor Carrier Safety Regulations and Pennsylvania Motor Vehicle Code.(Id., ¶ 42.)
On the basis of this lengthy factual recital, the plaintiffs then brought claims against Lisk and Morris which are grounded in Negligence (Id., Count I), Negligent Entrustment by Lisk Trucking, (Id., Count II), Negligent Hiring, Retention, and Supervision by Lisk Trucking, (Id., Count III); Loss of Consortium claims by Valerie Ehrenberg against Luther Morris, (Id., Count VI); as well as survival and wrongful death claims. (Id., Counts IV and V.) The complaint also characterizes [*5] the conduct of the defendants as careless, reckless and negligent, (Id.. ¶ 63), and based upon these well-pleaded averments seeks both compensatory and punitive damages. (Id.)
Despite these detailed factual averments, the defendants have filed a motion to dismiss this complaint, (Doc. 12), which seeks dismissal of the complaint in its entirety as unduly vague, and alleges that the complaint fails as a matter of law to state a claim upon which punitive damages may be awarded. (Doc. 12.) Thus, it is against the backdrop of these well-pleaded facts that we are asked to conduct a preliminary assessment of whether the plaintiff has alleged sufficient facts to pursue a Pennsylvania state law claim for punitive damages against Lisk and Morris. Inc. For the reasons set forth below, we conclude that this complaint satisfies federal pleading standards and the plaintiffs’ allegations, if proven, could support a claim for punitive damages under Pennsylvania law. Therefore, we recommend that this motion to dismiss be denied.

II. Discussion

A. Motion to Dismiss—Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance [*6] with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court’s opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court’s decision in Ashcroft v. Iqbal 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not [*7] “assume that a … plaintiff can prove facts that the … plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no [*8] more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint [*9] must do more than allege the plaintiff’s entitlement to relief. A complaint has to “show” such an entitlement with its facts.
Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed: “The Supreme Court in Twombly set forth the ‘plausibility’ standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege ‘enough facts to state a claim to relief that is plausible on its face.’ Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing ‘more than a sheer possibility that a defendant has acted unlawfully.’ Id. A complaint which pleads facts ‘merely consistent with’ a defendant’s liability, [ ] ‘stops short of the line between possibility and plausibility of “entitlement of relief.”‘” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 566 U.S. 921, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’ Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, ‘because they are no [*10] more than conclusions, are not entitled to the assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, LTD. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended [*11] complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. Punitive Damages Under Pennsylvania Law
The defendants are charged in a multi-count complaint with negligent, careless and reckless conduct which violated state law and federal highway regulations and led to serious injuries and death. To the extent that these counts bring claims for punitive damages under state law, Pennsylvania law sets an exacting standard for the award of punitive damages in tort cases. “Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts, which provides that punitive damages may be ‘awarded to punish a defendant for outrageous conduct, which is defined as an act which, in addition to creating “actual damages, also imports insult or outrage, and is committed with a view to oppress or is done in contempt of plaintiffs’ rights.” … Both intent and reckless indifference will constitute a sufficient mental state.’ Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 235 (3d Cir. 1997) (quoting Delahanty v. First Pa. Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1263 (1983)).” W.V. Realty, Inc. v. N. Ins. Co., 334 F.3d 306, 318 (3d Cir. 2003).
As the Pennsylvania Supreme Court has observed:
The standard governing the award of punitive damages in Pennsylvania is settled. “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of [*12] others.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Restatement (Second) of Torts § 908(2) (1979)); see also Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963). As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48; Chambers, 192 A.2d at 358. See also Restatement (Second) of Torts § 908, comment b. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Restatement (Second) of Torts § 908 (1) (“Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.”). Additionally, this Court has stressed that, when assessing the propriety of the imposition of punitive damages, “[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” See Feld, 485 A.2d at 748; see also Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12 (1985) (plurality opinion).
Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 121-22, 870 A.2d 766, 770-71 (2005).
In Hutchinson the Pennsylvania Supreme Court also:
[S]et forth the standard the courts are to apply when called upon to determine whether the evidence supports a punitive damages award on such a basis. Noting that Comment b to Section 908(2) of the Restatement refers to Section 500 as defining the requisite state of mind for punitive damages based on reckless indifference, [*13] this Court turned to Section 500, which states:
§ 500 Reckless Disregard of Safety Defined: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500.
Id. at 771. Noting that Section 500 set forth two very different types of state of mind as to reckless indifference, the Pennsylvania Supreme Court adopted the narrower reading of this state of mind requirement when addressing punitive damage claims, concluding that “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Id. at 772.
In motor vehicle accident cases where claims for punitive damages are pleaded by plaintiffs, defendants often invite courts to dismiss [*14] these punitive damage claims. Yet, such invitations, while frequently made by defendants, are rarely embraced by the courts. Instead, courts routinely deny requests to dismiss punitive damages claims in motor vehicle accident cases at the outset of litigation. See e.g., Kerlin v. Howard, No. 4:18-CV-00481, 2018 U.S. Dist. LEXIS 144152, 2018 WL 4051702, at *1 (M.D. Pa. Aug. 24, 2018); Wydra v. Bah, No. 3:15-CV-1513, 2016 U.S. Dist. LEXIS 7780, 2016 WL 297709, at *2 (M.D. Pa. Jan. 22, 2016); Cobb v. Nye, No. 4:14-CV-0865, 2014 U.S. Dist. LEXIS 172087, 2014 WL 7067578, at *4 (M.D. Pa. Dec. 12, 2014) citing Young v. Westfall, No. 4:06-CV-2325, 2007 U.S. Dist. LEXIS 14809, 2007 WL 675182, at *2 (M.D.Pa. Mar. 1, 2007) (denying motion to dismiss punitive damages in negligence accident involving a tractor-trailer); Ferranti v. Martin, No. 3:06cv1694, 2007 U.S. Dist. LEXIS 3981, 2007 WL 111272, at *2 (M.D.Pa. Jan. 19, 2007) (Munley, J.) (finding, in a claim relating to a tractor-trailer accident, that the plaintiff had pled sufficient allegations to require discovery). As a general rule, the courts have deemed such motions to dismiss punitive damages claims to be premature and inappropriate where, as here, the complaint alleges reckless conduct. Moreover, because the question of whether punitive damages are proper often turns on the defendants’ state of mind, this question frequently cannot be resolved on the pleadings alone, but must await the development of a full factual record at trial. See generally, In re Lemington Home for the Aged, 777 F.3d 620, 631 (3d Cir. 2015). Therefore, where a plaintiff’s right to punitive damages may turn on [*15] the significance afforded to disputed factual questions, defendants are not entitled to a judgment in their favor on the plaintiff’s punitive damages claims as a matter of law at the outset of the litigation. See Burke v. TransAm Trucking, Inc., 605 F. Supp. 2d 647, 649 (M.D. Pa. 2009); Garden State Tire Realty Corp. v. R.K.R. Hess Assoc., Inc., 762 F. Supp. 92, 93 (M.D. Pa. 1990).
It is against this legal backdrop that we are called upon to assess whether this complaint is legally sufficient and adequately alleges state law claims for punitive damages. With the scope of our review cabined and confined by the pleadings, we find that the complaint sufficiently states a claim for punitive damages under Pennsylvania law against these defendants.

C. This Motion to Dismiss Should Be Denied
Defendants have moved to dismiss the complaint, advancing a twofold claim. First, according to the defendants, the 32-page, 77-paragraph complaint is simply too vague and confusing to state a claim upon which relief may be granted. (Doc. 13, pp. 8-10.)
We disagree. Recognizing that federal pleading requirements set a plausibility standard for civil complaints, we acknowledge that, “[a] complaint satisfies the plausibility standard when the factual pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ Iqbal, 129 S. Ct. at 1949 (citing [*16] Twombly, 550 U.S. at 556, 127 S. Ct. 1955).” Burch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 566 U.S. 921, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012). In the instant case, fairly construed, this carefully detailed civil complaint fully meets the pleading requirements prescribed by federal law in that it plainly states a plausible claim of negligence against the defendants. Therefore, to the extent that the defendants allege that the complaint is completely insufficient and fails as a matter of law, this court should deny their motion to dismiss the complaint.
In addition to this broad attack upon the complaint in its entirety, the defendants advance a narrower argument, alleging that the punitive damages claims in the complaint are legally insufficient and should be dismissed. While we recognize that the plaintiff will ultimately be required to satisfy an exacting burden of proof to sustain these state law punitive damages claims, at this stage of the litigation, where we are considering a motion to dismiss, we submit that the plaintiff has alleged sufficient well-pleaded facts to permit this case to proceed forward on this punitive damages claim.
Accepting the well-pleaded facts set forth in the complaint, as we must when examining a motion to dismiss, it is alleged that the defendants acted in a reckless fashion [*17] in a series of ways which violated the duty of care they owed to others, state traffic laws, and federal motor vehicle regulations, in that they operated this tractor trailer in an unsafe manner in the face of warnings of severe and inclement weather. As we have noted, Pennsylvania law sets a high and exacting standard for the award of punitive damages. “[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison, 870 A.2d at 772. While this is a precise burden of pleading and proof, the well-pleaded facts set forth in the complaint plausibly state a claim for punitive damages under Pennsylvania law since, fairly construed, this complaint alleges that reckless behavior which caused this fatal accident. Such averments, as a matter of pleading, are sufficient to state a claim for punitive damages in this factual setting. See e.g., Kerlin v. Howard, No. 4:18-CV-00481, 2018 U.S. Dist. LEXIS 144152, 2018 WL 4051702, at *1 (M.D. Pa. Aug. 24, 2018); Wydra v. Bah, No. 3:15-CV-1513, 2016 U.S. Dist. LEXIS 7780, 2016 WL 297709, at *2 (M.D. Pa. Jan. 22, 2016); Cobb v. Nye, No. 4:14-CV-0865, 2014 U.S. Dist. LEXIS 172087, 2014 WL 7067578, at *4 (M.D. Pa. Dec. 12, 2014) citing Young v. Westfall, No. 4:06-CV-2325, 2007 U.S. Dist. LEXIS 14809, 2007 WL 675182, at *2 (M.D.Pa. Mar.1, 2007) [*18] (denying motion to dismiss punitive damages in negligence accident involving a tractor-trailer); Ferranti v. Martin, No. 3:06cv1694, 2007 U.S. Dist. LEXIS 3981, 2007 WL 111272, at *2 (M.D.Pa. Jan. 19, 2007) (Munley, J .) (finding, in a claim relating to a tractor-trailer accident, that the plaintiff had pled sufficient allegations to require discovery). Therefore, when viewed in the light of these well-pleaded facts set forth in the complaint, a basis lies in this case for a claim of punitive damages against defendants Lisk and Morris. Accordingly, the defendants are not entitled to the dismissal of this punitive damages claim at the outset of this litigation, and this motion to dismiss should be denied. See Burke v. TransAm Trucking, Inc., 605 F. Supp. 2d 647, 649 (M.D. Pa. 2009)(denying summary judgment on punitive damages claim); Garden State Tire Realty Corp. v. R.K.R. Hess Assoc., Inc., 762 F. Supp. 92, 93 (M.D. Pa. 1990) (denying motion to dismiss punitive damages claim).

III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Defendants’ Motion to Dismiss, (Doc. 12), be DENIED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, [*19] the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 8th day of November, 2018.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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