Morgan v. Wells Fargo & Co et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION declining to adopt 9 Report and Recommendation, authorizing the Clerk of Court to issue summons for service of the 12 Amended Complaint, and directing counsel for the Plaintiff to advise the court if the Plaintiff's Pro Se 5 Motion for a Temporary Restraining Order is now moot. Signed by Honorable Joseph F. Anderson, Jr. on 04/01/2016. (bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Michael G. Morgan,

C/A No. 1:15-4032-JFA

Plaintiff,
v.
ORDER
Wells Fargo Bank, N.A. a/k/a Wells Fargo
Home Mortgage a/k/a Wells Fargo Home
Mortgage – San Antonio,
Defendant.

I.

INTRODUCTION

Michael G. Morgan (“Plaintiff”), represented by counsel 1, has filed this suit against
Wells Fargo Bank, N.A (“Defendant”) seeking to enforce an alleged breach of a class action
settlement. (ECF No. 12). Specifically, Plaintiff claims that Defendant has violated the terms of a
class action settlement agreement by refusing to modify his $1,300,000 mortgage loan. In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case was
referred to the Magistrate Judge.
The Magistrate Judge assigned to this action 2 prepared a thorough Report and
Recommendation (“Report”) and opines that this Court should dismiss the Complaint in this case
without prejudice and without issuance and service of process. (ECF No. 9). The Magistrate
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2

Plaintiff filed his original Complaint pro se, but has since retained counsel and filed an Amended
Complaint.
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02(B)(2)(g) (D.S.C.). The Magistrate Judge makes only a recommendation to this court. The
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a
de novo determination of those portions of the Report and Recommendation to which specific objection
is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b)(1).

further opined that the Plaintiff’s motion for a temporary restraining order (ECF No. 5) should be
denied as moot. Plaintiff was advised of his right to object to the Report, which was entered on
the docket on October 21, 2015. On November 8, 2015, Plaintiff filed an Amended Complaint
along with a statement of objection to the Report. (ECF No. 12; ECF No. 13). Thus, this matter
is ripe for the Court’s review.
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to
conduct a de novo review of the specific portions of the Magistrate Judge’s Report to which an
objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd.
of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to
portions of the Report of the Magistrate, this Court is not required to give an explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The Report sets forth in detail the relevant facts and standards of law on this matter, and
this Court incorporates those facts and standards without a recitation.
II.

DISCUSSION

Plaintiff objects to the Magistrate’s finding that there is no federal jurisdiction in this
case. Plaintiff argues that the Amended Complaint cures any jurisdictional deficiencies that were
present in the Plaintiff’s original Complaint. The Court agrees.
In the Report, the Magistrate applied the correct principles of law to the facts of this case
and found that the Plaintiff had not invoked federal jurisdiction in his original Complaint. 3

3

In his original pro se Complaint, Plaintiff mistakenly tried to invoke federal question jurisdiction.
Plaintiff’s counsel has since filed an Amended Complaint invoking diversity jurisdiction.
2

However, the Plaintiff has since retained counsel and filed an Amended Complaint. Plaintiff’s
Amended Complaint expressly alleges that this Court has diversity jurisdiction under 28 U.S.C. §
1332, and pleads facts that show existence of that jurisdiction. Specifically, the Amended
Complaint alleges that Plaintiff is a citizen of Aiken County, South Carolina, and that Defendant
is a Delaware corporation with its principle place of business in California. The Amended
Complaint further alleges that the matter in controversy—a $1,300,000 mortgage loan—exceeds
the sum of $75,000, exclusive of interest and costs.
Because the Amended Complaint has now replaced the original Complaint, it is now this
action’s operative complaint. The facts to support diversity jurisdiction existed in this case from
the outset, but Plaintiff’s original pro se Complaint failed to elaborate on them. However, the
facts pled in the Amended Complaint cure any jurisdictional deficiency in the original
Complaint. The Amended Complaint meets the jurisdictional requirements of Section 1332.
III.

CONCLUSION

After carefully reviewing the applicable laws, the record in this case, as well as the
Report, this Court DECLINES to adopt the Report and Recommendation of the Magistrate.
Accordingly, the Clerk of Court is directed to authorize the issuance of a summons in this case so
that the Amended Complaint may be served upon the Defendant. Counsel for the Plaintiff is
directed to advise the Court whether or not the Plaintiff’s pro se motion for a temporary
restraining order (ECF No. 5) is now moot.

IT IS SO ORDERED.

April 1, 2016
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge
3