Bey v. Simpson et al

Filing 23

ORDER adopting 13 & 21 Memorandum and Recommendations; granting 4 Motion to Dismiss for Lack of Jurisdiction filed by Jessie B. Caldwell; granting 14 Motion to Dismiss filed by Citimortgage, Inc. Plaintiff must show cause within (14) days why her case against Defendant Simpson and Defendant Dover Mortgage Company should not be dismissed for failure to timely serve them. Signed by Chief Judge Robert J. Conrad, Jr on 1/17/2012. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-349-RJC-DCK
JACQUELINE ALLEN BEY,

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Plaintiff,

v.

DAVID A. SIMPSON,
CITIMORTAGE, INC,
JESSE B. CALDWELL, and
DOVER MORTGAGE COMPANY,
Defendants.

ORDER

THIS MATTER is before the Court on Defendants CitiMortgage, Inc. and the
Honorable Jesse B. Caldwell’s (“Caldwell”) “Motion(s) to Dismiss,” (Doc. Nos. 4; 14), and the
Magistrate Judge’s Memoranda and Recommendations (“M&R”), (Doc. Nos. 13; 21),
recommending that the Court GRANT Defendants’ motions. For the reasons below, the Court
ADOPTS the Magistrate Judge’s M&Rs and GRANTS Defendants’ motions to dismiss.
I.

BACKGROUND
Pro se Plaintiff Jacqueline Allen Bey (“Plaintiff”) filed a “Petition for Federal

Intervention and Request for Injunctive Relief,” (Doc. No. 1) (the “Complaint”), on July 20,
2011. Plaintiff has not filed proof of service on Defendants Dover Mortgage Company or David
A. Simpson.
Plaintiff served a summons on Caldwell, (Doc. No. 6), on August 1, 2011. Caldwell then
filed a “Motion to Dismiss,” (Doc. No. 4), on August 22, 2011. Plaintiff failed to file a response.
On September 28, 2011, the Magistrate Judge issued an M&R, (Doc. No. 13), recommending

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that the Court grant Caldwell’s “Motion to Dismiss,” (Doc. No. 4). Neither party objected to the
Magistrate Judge’s M&R.
Plaintiff served CitiMortgage with a summons, (Doc. No. 9), on August 18, 2011.
CitiMortgage filed a “Motion to Dismiss,” (Doc. No. 14), and a “Memorandum in Support of
Defendant CitiMortgage, Inc.’s Motion to Dismiss,” (Doc. No. 15), on October 5, 2011.
Plaintiff again failed to file a response. On November 28, 2011, the Magistrate Judge issued an
M&R, (Doc. No. 21), recommending that the Court grant Defendant CitiMortgage’s “Motion to
Dismiss,” (Doc. No. 14). Neither party objected to the Magistrate Judge’s M&R.
II.

STANDARD OF REVIEW
The Federal Magistrate Act provides that “a district court shall make a de novo

determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). “By contrast, in the absence of a timely filed 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 v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (quoting FED. R. CIV. P. 72 advisory committee’s note).
Where a party fails to object to a Magistrate Judge’s M&R, the district court may accept, object,
or modify the M&R without explanation. Camby, 718 F.2d at 199. Nonetheless, a district judge
is responsible for the final determination and outcome of the case, and accordingly the Court has
conducted a careful review of the Magistrate Judge’s M&R.
III.

ANALYSIS
After a careful review of the record in this case, the Court finds that the Magistrate

Judge’s findings of fact are supported by the record and his conclusions of law are consistent

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with and supported by current case law. The Court hereby ACCEPTS both of the Magistrate
Judge’s M&Rs and ADOPTS both as the decision of the Court. Rule 72(b) of the Federal Rules
of Civil Procedure allows a party 14 days to file specific written objections to a Magistrate
Judge’s proposed findings and recommendations. FED . R. CIV . P. 72(b)(2). Plaintiff has not
objected to either of the Magistrate Judges’ M&Rs, therefore the Court need not elaborate. See
Camby, 718 F.2d at 199.
Under Federal Rule of Civil Procedure 4(m), a defendant must be served within 120 days
of the complaint being filed. FED . R. CIV . P. 4(m). The plaintiff has failed to do so. When
Plaintiff fails to timely serve a defendant, the Court must dismiss Plaintiff’s complaint against
those defendants or order that service be made within a specified time. Before the Court
dismisses, however, it must first notify Plaintiff of its intention to do so. The Court orders
Plaintiff to show cause within fourteen (14) days of the date of this Order why her case against
Defendant Simpson and Defendant Dover Mortgage Company should not be dismissed for
failure to timely serve them.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

The Magistrate Judge’s M&R, (Doc. No. 13), is ADOPTED;

2.

The Magistrate Judge’s M&R, (Doc. No. 21), is ADOPTED;

3.

Defendant the Honorable Jesse B. Caldwell’s “Motion to Dismiss,” (Doc. No. 4),
is GRANTED;

4.

Defendant CitiMortgage, Inc’s “Motion to Dismiss,” (Doc. No. 14), is
GRANTED;

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5.

Defendant the Honorable Jesse B. Caldwell is DISMISSED from the action;

6.

Defendant CitiMortgage, Inc is DISMISSED from the action; and

7.

Plaintiff must show cause within fourteen (14) days of the date of this Order why
her case against Defendant Simpson and Defendant Dover Mortgage Company
should not be dismissed for failure to timely serve them.

Signed: January 17, 2012

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