Best v. Apollo Funds

Filing 10

ORDER - The court ADOPTS the conclusions in the M&R 8 and DISMISSES WITH PREJUDICE plaintiff's complaint for failure to state a claim. The clerk shall close the case. Signed by District Judge James C. Dever III on 3/25/2024. Sent via US Mail to Timothy Best at 208 E Caswell Street, General Mail, Kinston, NC 28501. (Mann, Stephanie)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DMSION
No. 4:24-CV-6-D
TIMOTHY BEST,
Plaintiff,
v.
APOLLO FUNDS,
Defendant.

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ORDER

On November 28, 2023, Timothy Best ("Best" or ''plaintiff'), proceeding pro~ filed a
complaint against Apollo Funds ("Apollo" or "defendant") [D.E. l] and a motion to proceed in
forma pauperis under 28 U.S.C. § 1915 [D.E. 2]. On January 23, 2024, pursuant to 28 U.S.C. §
636(b)(l), the court referred the case to Magistrate Judge Robert T. Numbers, II for a
Memorandum and Recommendation (''M&R'') and for a frivolity review [D.E. 6]. On February
28, 2024, Judge Numbers granted the motion to proceed in forma pauperis and issued an M&R
recommending that the court dismiss the complaint for failure to state a claim [D.E. 8]. Judge
Numbers established March 13, 2024, as the deadline for submitting written objections to the
M&R. See id. at 6. On March 25, 2024, Best filed written objections [D.E. 9].
''The Federal Magistrates Act requires a district court to make a de novo determination of
those portions of the magistrate judge's report or specified proposed findings or recommendations
to which objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315
(4th Cir. 2005) (cleaned up); see 28 U.S.C. § 636(b)(1 ). Absent a timely objection, "a district court
need not conduct a de novo review, but instead must only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation." Diamond, 416 F.3d at 315

(quotation omitted). If a party makes only general objections, de novo review is not required. See
Wells v. Shriners Hos.p., 109 F.3d 198, 200 (4th Cir. 1997). In "order to preserve for appeal an
issue in a magistrate judge's report, a party must object to the finding or recommendation on that
issue with sufficient specificity so as reasonably to alert the district court of the true ground for the
objection." Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quotation omitted); see United
States v. Midgette, 478 F.3d 616,622 (4th Cir. 2007).
The court reviews for clear error. See Diamond, 416 F.3d at 315. The court has reviewed
the M&R, the record, and Best's untimely written objections~ There is no clear error on the face
of the record. See id. As for Best's untimely written objections, Best has not established excusable
neglect. See,~ Smith v. Look Cycle USA, 933 F. Supp. 2d 787, 790 (E.D. Va. 2013) ("Where
a party seeks an extension of time after the Rule 6(b) deadline for filing has passed, courts must
find excusable neglect before granting the motion."); cf. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (describing factors to consider concerning excusable
neglect). Moreover, and in any event, Best's objections are baseless.
In sum, the court ADOPTS the conclusions in the M&R [D.E. 8] and DISMISSES WITH
PREJUDICE plaintiff's complaint for failure to state a claim. The clerk shall close the case.
SO ORDERED. This 1$" dayofMarch, 2024.

1xtffis c~~Ewtfu
United States District Judge

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