Wade v. Messer ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LAVERNE WADE,
Plaintiff-Appellant,
v.
No. 99-1482
FRANCES MESSER; CARVER LIVING
CENTER,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-98-120-1)
Submitted: January 11, 2000
Decided: April 28, 2000
Before LUTTIG and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Laverne Wade, Appellant Pro Se. Alexander Lyon Maultsby, SMITH,
HELMS, MULLISS & MOORE, L.L.P., Greensboro, North Carolina,
for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Laverne Wade appeals the district court's order granting
summary judgment to Appellees in her civil action in which she
alleged discriminatory discharge. Wade's case was referred to a mag-
istrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (1994). The magis-
trate judge recommended that summary judgment be granted in favor
of Appellees on all claims. Noting that no objections had been filed,
the district court declined to make a de novo review, granted sum-
mary judgment to Appellees, and dismissed the action based upon the
magistrate judge's report and recommendation. The district court
record, however, does not disclose whether a copy of the report and
recommendation was ever sent to the parties or to their counsel.
Instead, it appears that the report and recommendation and notice
regarding the timely filing of objections were mailed to attorneys who
are not attorneys of record for any of the parties in this case.
Because it is unclear from the record whether the magistrate
judge's report and recommendation and notice were sent to Wade or
to her attorney, we vacate the district court's order adopting the mag-
istrate judge's report and recommendation and remand to the district
court for further proceedings. We direct that, on remand, the district
court determine whether the magistrate judge's report and recommen-
dation and notice were sent to counsel of record and to Wade. If the
district court determines the appropriate mailing did not occur, we
further direct the court to mail a copy of the magistrate judge's report
and recommendation with appropriate notice regarding objections
thereto to counsel of record and to Wade to permit the parties to file
timely objections if they so desire and for further proceedings as
appropriate.* We express no opinion as to the merit of Wade's
_________________________________________________________________
*We note that Wade is proceeding pro se on appeal but was repre-
sented by counsel below.
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claims. We deny Wade's motion for appointment of counsel and deny
as moot the Appellees' motion to strike Wade's reply brief and
Wade's motion in opposition. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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