Randall v. Tierney et al

Filing 71

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION accepting 60 Report and Recommendation, granting 50 Motion to Dismiss with prejudice. Signed by Honorable J Michelle Childs on 6/7/2017. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Mary C. Randall,

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Plaintiff,
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v.
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Richard M. Tierney, C.P.C.U., ACI
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Branch Manager; and Michael C.
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Pedersen, Amica Adjuster
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Defendants.
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____________________________________)

Civil Action No.: 1:16-cv-00255-JMC

ORDER AND OPINION

Plaintiff Mary C. Randall (“Plaintiff”) filed a Pro se insurance claim (“amended
Complaint”) against Amica Insurance Company (“Amica”) and its employees Richard M. Tierney
and Michael C. Pederson (collectively “Defendants”) (ECF No. 35).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Shiva V. Hodges for pre-trial handling. On January 11, 2017, the
Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court to
grant Defendants’ motion to dismiss (ECF No. 50) and dismiss Plaintiff’s amended Complaint
(ECF No. 35) with prejudice. (ECF No. 60.) This review considers Plaintiff’s Objection to Report
and Recommendation (“Objections”), filed on January 23, 2017. (ECF No. 64.) For the reasons
set forth herein, the court ACCEPTS the Magistrate Judge’s Report.

The court thereby

DISMISSES Plaintiff’s amended Complaint (ECF No. 35) with prejudice and GRANTS
Defendants’ motion to dismiss. (ECF No. 50.)

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I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to Plaintiff are discussed in the Report. (See
ECF No. 60.) The court concludes, upon its own careful review of the record, that the Magistrate
Judge’s factual summation is accurate and incorporates it by reference. The court will only recite
herein facts pertinent to the analysis of Plaintiff’s Objections.

On January 27, 2016, Plaintiff filed a Complaint against Defendants. (ECF No. 1). On
February 25, 2016, Defendants filed a motion to dismiss Plaintiff’s Complaint. (ECF No. 22). On
April 18, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending the court to grant Defendants’ motion to dismiss, but that Plaintiff be allowed 15
days from the date of the order to file an amended Complaint. (ECF No. 32.) On May 6, 2016,
Plaintiff filed an amended Complaint. On August 3, 2016, the court adopted the Magistrate
Judge’s Report and dismissed Plaintiff’s original Complaint without prejudice, but finding
Plaintiff’s amended Complaint as timely filed. (ECF No. 44). On September 28, 2016, Defendants
filed a motion to dismiss Plaintiff’s amended Complaint. (ECF No. 50.)
In this case, the Magistrate Judge recommended the court to grant Defendants’ motion to
dismiss and dismiss Plaintiff’s amended Complaint with prejudice. (ECF No. 60.) The Magistrate
Judge determined that Plaintiff failed to plead any breach of contract claim against Defendants and
had no reasonable basis to support her bad faith claim against Amica concerning its settlement
decision on personal injury and property damage claims against Plaintiff. (Id. at 6-7.) The
Magistrate Judge further determined that Plaintiff failed to plead allegations of her fraud claim
with particularity against Defendants. (Id. at 9.)

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II. STANDARD OF REVIEW
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.
recommendation to this court.

The Magistrate Judge makes only a

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This 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 magistrate judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[I]n the absence of a timely filed
objection, 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, 316 (4th Cir. 2005) (quoting Fed. R. Civ.
P. 72 advisory committee’s note). Failure to timely file specific written objections to a Report will
result in a waiver of the right to appeal from an Order from the court based upon the Report. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to
properly object because the objections lack the requisite specificity, then de novo review by the
court is not required.
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that,

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under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
III. DISCUSSION
Plaintiff’s Objections lack the requisite specificity required by Federal Rule of Civil
Procedure 72(b). Since Plaintiff failed to properly object to the Report with specificity, the court
does not need to conduct a de novo review and instead 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. The court does not find clear error and accepts the Report by the Magistrate Judge.
In her Objections, Plaintiff merely asserts that “I clearly stated that AMICA fraudulently
found me liable for an accident where I was hit on the side and my brakes were on.” (ECF No. 64
at 2.) Plaintiff fails to challenge the Magistrate Judge’s conclusion that she did not allege any facts
that constituted a breach of contract and/or bad faith claim against Amica concerning its settlement
decision on the personal injury and property damage claims against Plaintiff. Furthermore,
Plaintiff failed to state factual allegations as to her fraud claim against Defendants.
IV. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation of the Magistrate Judge and the record in this case, the court ACCEPTS the
Report and Recommendation of the Magistrate Judge (ECF No. 60). It is therefore ordered that
Plaintiff’s amended Complaint (ECF No. 35) is DISMISSED with prejudice and Defendants’
motion to dismiss is GRANTED.

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IT IS SO ORDERED.

J. Michelle Childs
United States District Judge
June 7, 2017
Columbia, South Carolina

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