Randall v. Tierney et al
Filing
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AMENDED ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 32 Report and Recommendation; granting 22 Motion to Dismiss complaint (ECF No. 1) without prejudice and acknowledging Plaintiff's Amended Complai nt (ECF No. 35) was timely filed on May 6, 2016, pursuant to the Magistrate Judge's Report and Recommendation. The court ORDERS the Clerk to vacate the 42 judgment that was erroneously entered on August 2, 2016. The court recommits the matter to the Magistrate Judge for further pretrial proceedings consistent with this Amended Order Signed by Honorable J Michelle Childs on 8/3/2016. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Mary C. Randall,
)
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Plaintiff,
)
)
v.
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Richard M. Tierney, CPCU, in his official )
capacity as Branch Manager;
)
Michael C. Pederson, Amica Adjuster,
)
)
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Defendants.
)
____________________________________)
Civil Action No. 1:16-cv-00255-JMC
AMENDED ORDER AND OPINION
Plaintiff Mary C. Randall (“Plaintiff”), proceeding pro se, brings this action seeking relief
from Amica Insurance Company (“Amica”) employees Richard M. Tierney, CPCU, and Michael
C. Pederson (collectively “Defendants”). This matter is before the court for review of the
Magistrate Judge’s Report and Recommendation (“Report”) (ECF No. 32), filed April 18, 2016,
recommending that Defendants’ Motion to Dismiss (ECF No. 22) be granted without prejudice if
Plaintiff filed an amended complaint within 15 days of the instant Amended Order. For the
reasons below, the court ADOPTS the Magistrate Judge’s Report (ECF No. 32), GRANTS
Defendants’ Motion to Dismiss (ECF No. 22), DISMISSES the Complaint (ECF No. 1) without
prejudice, and acknowledges Plaintiff’s Amended Complaint (ECF No. 35) was timely filed on
May 6, 2016, pursuant to the Magistrate Judge’s Report.
I. FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Magistrate Judge’s Report (ECF No. 32) is accurate, and the court
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adopts this summary as its own. The court will only recite herein facts pertinent to the analysis of
Plaintiff’s Objections (ECF No. 34).
On January 27, 2016, Plaintiff filed an action that disagreed with Defendants’ liability
decision, which was not in her favor, related to a traffic accident. (ECF No. 1 at 5-9.) Plaintiff
requested that the court review evidence that was “never accepted into determining the outcome
of who caused the accident.” (ECF No. 1 at 10.) Additionally, Plaintiff sought relief in the form
of punitive damages for the alleged bad faith on the part of Defendants, which allegedly caused
her emotional harm. (Id.) On February 25, 2016, Defendants filed a Motion to Dismiss, arguing
that Plaintiff fails to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6). (ECF No. 22.) Plaintiff filed timely objections to the Report (ECF No. 32) on May 5,
2016, arguing that Defendants failed to adequately represent her in the insurance claim. (ECF
No. 34.)
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The court reviews de novo only those portions of a magistrate judge’s report and
recommendation to which specific objections are filed, and reviews those portions which are not
objected to – including those portions to which only “general and conclusory” objections have
been made – for clear error. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the
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recommendation of the magistrate judge or recommit the matter with instructions. See 28 U.S.C.
§ 636(b)(1). Furthermore, failure to file specific written objections to a report and
recommendation results in a party’s waiver of the right to appeal from the judgment of the
District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140 (1985).
III. ANALYSIS
The Magistrate Judge determined that Plaintiff’s Complaint (ECF No. 1) did not specify
any particular cause of action. (ECF No. 32 at 5.) However, the Report did note that Plaintiff
intended to amend the Complaint (ECF No. 1) to allege claims for breach of contract, bad faith,
and fraud. (ECF No. 32 at 5.)
First, the Magistrate Judge found that Plaintiff could not prevail on a breach of contract
claim because Plaintiff failed to cite a specific clause in the insurance contract that Defendants
breached. (Id. at 5 (citing Southard v. Pye, 2006-UP-309, 2006 WL 7286055 at *3 (S.C. Ct. App.
July 7, 2006)).) Next, the Magistrate Judge determined that Plaintiff failed to allege facts
showing that Defendants’ decision to settle was unreasonable. (Id. at 6 (citing Trotter v. State
Farm Mut. Auto. Ins. Co., 377 S.E.2d 343, 349 (S.C. Ct. App. 1988)).) Finally, the Magistrate
Judge stated that while Plaintiff alleged Defendants lied, no other elements of fraud were
established. (Id. at 7 (citing M.B. Kahn Constr. Co. v. S.C. Nat’l Bank of Charleston, 271 S.E.2d
414, 415 (S.C. 1980); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th
Cir. 1999)).)
Plaintiff objects to the Report (ECF No. 32) and provides this court with a substantial
amount of exhibits for review as attachments. (ECF No. 34.) However, because Plaintiff’s
Objection (ECF No. 34) does not focus on the issues set forth in the Report (ECF No. 32), this
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court is not obligated to provide de novo review because Plaintiff fails to articulate specific
objections. Instead, Plaintiff restates the arguments already considered by the Magistrate Judge.
Consequently, the court must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond, 416 F.3d at 315 (quoting an advisory
committee note in Fed. R. Civ. P. 72). Upon review of the record, no clear errors were found.
IV. CONCLUSION
After a thorough review, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 32), GRANTS Defendants’ Motion to Dismiss (ECF No. 22),
DISMISSES the Complaint (ECF No. 1) without prejudice, and acknowledges Plaintiff’s
Amended Complaint (ECF No. 35) was timely filed on May 6, 2016, pursuant to the Magistrate
Judge’s Report and Recommendation. The court ORDERS the Clerk to vacate the judgment
that was erroneously entered on August 2, 2016.
The court recommits the matter to the
Magistrate Judge for further pretrial proceedings consistent with this Amended Order.
IT IS SO ORDERED.
United States District Judge
August 3, 2016
Columbia, South Carolina
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