Curry v. Southern Regional Hospital et al

Filing 6

OPINION AND ORDER ADOPTING the 3 Final Report and Recommendation. This action is DISMISSED WITHOUT PREJUDICE. The Plaintiff's 5 Motion for Reconsideration is DENIED. Signed by Judge William S. Duffey, Jr on 10/11/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LAKETIA WILLIAMS CURRY,
Plaintiff,
v.

1:13-cv-960-WSD

SOUTHERN REGIONAL
HOSPITAL and EMORY
UNIVERSITY CLINIC,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [3] (“R&R”) and Plaintiff’s “Motion for
Reconsideration” [5].
I.

BACKGROUND
On March 25, 2013, Debra Curry (“Ms. Curry”), proceeding pro se, filed an

application seeking leave to file in forma pauperis a complaint on behalf of her
daughter Laketia Williams Curry (“Laketia”).1 On March 27, 2013, after
reviewing the application, Magistrate Judge Baverman issued an order [2] (the

1

The Court refers to Laketia as “Plaintiff” in her capacity as the party in this
action.

“March 27th Order”) finding that Ms. Curry, a non-attorney, could not represent
her daughter in this action, and he ordered Plaintiff to hire, within thirty days, an
attorney to represent Laketia.
On May 15, 2013, an attorney had not appeared in this action, and no
response had been filed to the March 27th Order. Judge Baverman thus issued his
R&R recommending that this action be dismissed without prejudice based on
Plaintiff’s failure to obey the March 27th Order.
On June 5, 2013, Plaintiff filed, pro se, her Motion for Reconsideration
stating that an attorney has now been retained and asking that this action not be
dismissed. No attorney subsequently has appeared in this action.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,

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a court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

Even if the Court construes the Motion for Reconsideration as an objection
the R&R, Plaintiff has not objected to Judge Baverman’s finding that Ms. Curry
and Laketia failed to obey the March 27th Order or to his conclusion that this
action is thus subject to dismissal. The Court does not find plain error in these
findings. See LR 41.3(A), NDGa (authorizing the Court to “dismiss a case for
want of prosecution if . . . [a] plaintiff . . . shall . . . fail or refuse to obey a lawful
order of the court in the case”).
In the Motion for Reconsideration, Plaintiff states that she has hired an
attorney, and she requests thirty (30) days to allow her attorney to review the
papers in this case. In the four (4) months since Plaintiff made this representation
to the Court, no attorney has made an appearance. Because Plaintiff is required to
be represented, this action cannot proceed, and the Motion for Reconsideration is
required to be denied. See 28 U.S.C. § 1654 (providing that parties may represent
themselves personally or by counsel); see also Simon v. Hartford Life, Inc., 546
F.3d 661, 664 (9th Cir. 2008) (“It is well established that the privilege to represent
oneself pro se provided by § 1654 is personal to the litigant and does not extend to

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other parties or entities.”).2
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s

Final Report and Recommendation [3] is ADOPTED. This action is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration
[5] is DENIED.

SO ORDERED this 11th day of October, 2013.

2

The Court further notes that the Court appears to lack subject matter jurisdiction
over this matter. Plaintiff’s Complaint asserts only state law causes of action, and
the Court could have only diversity jurisdiction over it. See 28 U.S.C. § 1332(a).
Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and
the suit is between citizens of different states. Id. The Complaint does not show
either that the amount in controversy exceeds $75,000 or that the parties are of
diverse citizenship. For this additional reason, this action is required to be
dismissed without prejudice. See Travaglio v. Am. Express Co., No. 11-15292,
2013 WL 4406389, at *2–3 (11th Cir. Aug. 19, 2013) (publication pending).

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