Collado v. Cancel

Filing 14

ORDER ADOPTING 10 REPORT AND RECOMMENDATIONS, transferring this case to the United States District Court for the Western District of New York. Signed by Honorable Margaret B Seymour on 10/14/10. (rpol, ) [Transferred from scd on 10/14/2010.]

C o l l a d o v. Cancel

D o c . 14

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA Laz a ro Montero Collado, ) ) C/A No. 9:10-1870-MBS Plaintiff, ) ) vs. ) ) ORDER J u a n ita Cancel, ) ) D e fe n d a n t . ) ____________________________________) P l a i n t iff Lazaro Montero Collado is a federal inmate in custody of the Federal Bureau of P r is o n s who currently is housed at FCI-Estill in Estill, South Carolina. Plaintiff brings this civil a c tio n for breach of contract against Defendant Juanita Cancel, alleging, among other things, that D e fe n d a n t failed to pay Plaintiff a monthly fee of $1,000 for the privilege of running Plaintiff's re s ta u ra n t, "Hispanic Take Out," located in Rochester, New York. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was re fe rre d to United States Magistrate Judge Robert S. Carr for pretrial handling. On September 3, 2 0 1 0 , the Magistrate Judge filed a Report and Recommendation in which he noted that there is d iv e rs ity between the parties, Plaintiff being a citizen of the Dominican Republic illegally in the U n i te d States, and Defendant being a resident of the State of New York, so that it would appear the c o u rt has subject matter jurisdiction. However, the Magistrate Judge determined that the court lacks p e rs o n a l jurisdiction over Defendant. Accordingly, the Magistrate Judge recommended that the a c t i o n be transferred to the United States District Court for the Western District of New York for fo r u m conveniens purposes. The Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo

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d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of a timely filed objection, a district court need not conduct a de novo r e v i e w , but instead must "only satisfy itself that there is no clear error on the face of the record in o rd e r to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315

(4th Cir. 2005).
The court has carefully reviewed the record. The court adopts the Report and

R e co m m e n d a tio n and incorporates it herein by reference. Plaintiff's complaint is transferred to the U n i te d States District Court for the Western District of New York. I T IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina O c to b e r 13, 2010.

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