Wade v. Messer

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT LAVERNE WADE, Plaintiff-Appellant, v. No. 99-1482 FRANCES MESSER; CARVER LIVING CENTER,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. _________________________________________________________________ Vacated and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Laverne Wade, Appellant Pro Se. Alexander Lyon Maultsby, SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro, North Carolina, for Appellees. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ 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. 2 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 3