TriCamp Capital, LLC v. Mid South Carbon Corporation

Filing 18

ORDER denying 6 Motion to Transfer, Stay and Consolidate Cases; affirming 15 Memorandum and Recommendations; FURTHER ORDERED that Defendant shall Answer the Complaint within 14 days. Signed by District Judge Max O. Cogburn, Jr on 3/6/2015. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00516-MOC-DSC
TRICAMP CAPITAL, LLC,

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Plaintiff,
Vs.
MID SOUTH CARBON CORPORATION,
Defendant.

ORDER

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation, the
magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c). Objections have been
filed within the time allowed and plaintiff has timely filed its response to those
objections.
The Federal Magistrates Act of 1979, as amended, 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). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may
be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de
novo review is not required by the statute “when a party makes general or conclusory
objections that do not direct the court to a specific error in the magistrate judge’s
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proposed findings and recommendations.” Id. Moreover, the statute does not on its face
require any review at all of issues that are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby, 718 F.2d at 200. 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 recommendation.
The court agrees with plaintiff that defendant’s objections to the Memorandum
and Recommendation are not specific and, more importantly, raise arguments not made
to Judge Cayer. Having earlier served in such capacity, this court is particularly sensitive
to arguments made for the first time in the form of an Objection as they frustrate the
efficiency of having a United States Magistrate Judge conduct an initial review,
circumventing a process which has allowed this court to better serve civil litigants.
Turning to the merits of the Objections, defendant appears to contend that Judge
Cayer prematurely reached its Motion to Transfer, Stay and Consolidate this Case with a
Case Pending in the Southern District of West Virginia or, in the Alternative,
Defendant’s Motion to Dismiss (#6). Despite such argument, nowhere in the record does
defendant ask the court to stay its consideration. Indeed, it appears that only after Judge
Cayer recommended that the relief defendant sought be denied did defendant interpose
such variable into the equation.
Beyond such concern, the court finds little merit in the substance of the Objection
as it appears that there is no basis for transferring this action for consolidation with a case
which has been dismissed.

On December 9, 2014, Chief District Judge Robert C.

Chambers dismissed the West Virginia case in Mid South Carbon Corporation v.
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TriCamp Capital, LLC, No. 3-14-cv-26023. Judge Chambers held that the original West
Virginia state court action was procedurally defective and not validly pending against
TriCamp since Mid South failed to include a civil case information statement with its
pleading. Such a statement is required under Rule 3 of the West Virginia Rules of Civil
Procedure. The court concluded that “there was no validly pending action against
Defendant [TriCamp] in state court when the case was removed.” (#14-1) at 4. While
defendant herein has appealed Judge Chambers’ decision, this court can see no reason
why such appeal should forestall this action.

Indeed, Judge Chambers held that

“[p]rovided the North Carolina action was properly filed, it clearly was filed first because
Plaintiff [Mid South] did not even attempt to file a civil case information statement to
lawfully initiate its state action until October 15, 2014.” Id. at 6. Should the Court of
Appeals for the Fourth Circuit reverse, remand, and reinstate the West Virginia action,
this court can always revisit the venue issues.

The court will, therefore, adopt the

recommendation of Judge Cayer in full, but provide that the denial of defendant’s motion
be without prejudice.
After such careful review, the court determines that the recommendation of the
magistrate judge is fully consistent with and supported by current law. Further, the
factual background and recitation of issues is supported by the applicable pleadings.
Based on such determinations, the court will fully affirm the Memorandum and
Recommendation and grant relief in accordance therewith.
ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
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(#15) is AFFIRMED, and defendant’s Motion to Transfer, Stay and Consolidate this
Case with a Case Pending in the Southern District of West Virginia or, in the Alternative,
Defendant’s Motion to Dismiss (#6) is DENIED without prejudice.

Defendant shall Answer the Complaint within 14 days. After joinder of the issues,
the parties shall conduct an IAC and file a CIAC and a proposed Scheduling Order for
consideration by Judge Cayer as provided in the Local Civil Rules.

Signed: March 6, 2015

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