Swearington v. Federal Trade Commission et al

Filing 17

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction; denying 12 Motion to Remand to State Court; denying 14 Motion to Remand; affirming 16 Memorandum and Recommendations. The remainder of this action is REMANDED to the North Carolina General Court of Justice, Mecklenburg County, for further proceedings.. Signed by District Judge Max O. Cogburn, Jr on 9/8/2017. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00254-MOC-DSC
DERRITT SWEARINGTON,

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Plaintiff,
Vs.

FEDERAL TRADE COMMISSION
PAUL COX
DME-DIRECT/VISCOPED S INSOLE,
Defendants.

ORDER OF DISMISSAL OF
FEDERAL DEFENDANT AND
REMAND TO STATE COURT

THIS MATTER is before the Court on review of a Memorandum and Recommendation
issued in this matter. In the August 17, 2017, 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). No objections have been filed within the time allowed.
I.

Applicable Standard of Review
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 proposed findings and recommendations.” Id. Moreover, the statute
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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.
II.

Discussion
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 brief 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. In addition, the Court will remand the remainder of the action to state court as removal
was based on the presence of a federal defendant and, with the dismissal of such federal defendant,
no cognizable federal claims remain and the court declines to exercise its supplemental jurisdiction
over any state claims inasmuch as it is unclear whether plaintiff ever perfected service on the nonfederal defendants prior to removal.
ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation (#16) is
AFFIRMED, plaintiff’s Motion to Remand (#12) is DENIED, defendant Federal Trade
Commission’s Motion to Dismiss is GRANTED, and defendant Federal Trade Commission is
dismissed from this action with prejudice.
IT IS FURTHER ORDERED that the remainder of this action is REMANDED to the
North Carolina General Court of Justice, Mecklenburg County, for further proceedings.

Signed: September 8, 2017

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