Hubbard v. Wallenstein et al

Filing 42

ORDER adopting 40 Memorandum and Recommendations.; granting 17 Motion to Dismiss ; granting 21 Motion to Dismiss for Lack of Jurisdiction; denying 23 Motion to Dismiss. Signed by Senior Judge Robert J. Conrad, Jr on 09/24/2024. (Pro se litigant served by US Mail.)(mdp)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00202-RJC-SCR
MARC HUBBARD,

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Plaintiff,
v.
MARC A. WALLENSTEIN, et al.,
Defendants.

ORDER

THIS MATTER is before the Court on Defendants’ Motions to Dismiss (Doc.
Nos. 17, 21, 23); the Magistrate Judge’s Memorandum and Recommendation
(“M&R”), (Doc. No. 40), and Plaintiff’s Objection to the M&R, (Doc. No. 41). For the
reasons explained below, the Court ADOPTS the M&R and GRANTS the Federal
Defendants’ Motion to Dismiss, (Doc. No. 17), and Defendant Harrison’s Motion to
Dismiss for Lack of Personal Jurisdiction, (Doc. No. 21). The Court DENIES as
MOOT Defendant Harrison’s Motion to Dismiss for Insufficient Service of Process,
(Doc. No. 23).
I.

BACKGROUND
No party has objected to the Magistrate Judge’s statement of the factual and

procedural background of this case. Therefore, the Court adopts the facts as set forth
in the M&R.
II.

STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to
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dismiss, to a magistrate judge for “proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district
court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b)(3). 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). De novo review is also not
required “when a party makes general and conclusory objections that do not direct
the court to a specific error in the magistrate’s proposed findings and
recommendations.” Id. Similarly, when no objection is filed, “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 & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ.
P. 72, advisory committee note).
III.

DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge

shall make a de novo determination of any portion of an M&R to which specific
written objection has been made. Having conducted a full review of the M&R,
Plaintiff’s Objection to the M&R, and other documents of record, the Court finds that
Plaintiff has failed to submit a specific written objection directing the Court to a
specific error in the Magistrate Judge’s proposed findings and recommendations.
That Plaintiff disagrees with the M&R’s result is insufficient.

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First, Plaintiff objects on grounds that he “properly served the Attorney
General via certified mail to the Assistant Attorney General Dena King.” (Doc. No.
41 at 1). Plaintiff attached a Certificate of Service indicating as much. (Id. at 2). But
Plaintiff’s objection fails to rebut the M&R’s sound reasoning that “[u]nder the federal
rules, a party seeking to serve the United States must ‘send a copy of [the summons
and the complaint] by registered or certified mail to the Attorney General of the
United States at Washington, D.C.,’ among other requirements.” (Doc. No. 40 at 16
(citing Fed R. Civ. P. 4(i)(1)(B)). Accordingly, the Court adopts the M&R’s
recommendation.
Second, Plaintiff, restating arguments already made, objects on grounds that
the Government “is not entitled to absolute immunity” and the “Westfall Act is not
available to the Government in the instant case because the Defendants were not
acting within the scope of their duty when they committed these treasonous Acts.”
(Doc. No. 41 at 3). Plaintiff fails to state a specific objection directing the Court to a
specific error in the Magistrate Judge’s M&R. Nevertheless, having conducted a full
review of the record, the Court hereby finds that the recommendation of the
Magistrate Judge is, in all respects, in accordance with the law and should be
approved. Accordingly, the Court adopts the M&R’s recommendation.
Third, Plaintiff objects on grounds that Defendants “are subject to personal
jurisdiction in North Carolina via North Carolinas long arm statute.” (Doc. No. 41 at
3). Plaintiff fails to state a specific objection directing the Court to a specific error in
the Magistrate Judge’s M&R. Nevertheless, having conducted a full review of the

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record, the Court hereby finds that the recommendation of the Magistrate Judge is,
in all respects, in accordance with the law and should be approved. Accordingly, the
Court adopts the M&R’s recommendation.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. The Magistrate Judge’s M&R, (Doc. No. 40), is ADOPTED;
2. Federal Defendants’ Motion to Dismiss, (Doc. No. 17), is GRANTED;
3. Defendant Harrison’s Motion to Dismiss for Lack of Personal Jurisdiction,
(Doc. No. 21), is GRANTED;
4. Defendant Harrison’s Motion to Dismiss for Insufficient Service of Process,
(Doc. No. 23), is DENIED as MOOT.

Signed: September 24, 2024

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