Johnson et al v. Peterson et al

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATIONS. Magistrate Judge Marchant's report and recommendation is affirmed, and 25 Motion to Remand, filed by William S Johnson, Ella L Johnson is granted. This case is remanded to the South Carolina Court of Common Pleas for disposition. Signed by Chief Judge David C Norton on 3/18/2010. (cmur, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

W illia m S. Johnson and Ella L. Johnson, Plaintiff, vs. P e n e lo p e Parker Peterson, Sara Peterson W h ite , A. Bart Peterson and John Doe, D e f e n d a n ts .

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C /A No. 2:09-2498 DCN

ORDER

T h e above referenced case is before this court upon the magistrate judge's re c o m m e n d a tio n that plaintiffs' Motion to Remand be granted and the case remanded to th e South Carolina Court of Common Pleas for disposition. T h is court is charged with conducting a de novo review of any portion of the m a g is tra te judge's report to which a specific objection is registered, and may accept, re je c t, or modify, in whole or in part, the recommendations contained in that report. 28 U .S .C . § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears th a t Congress did not intend for the district court to review the factual and legal c o n c lu s io n s of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, a n y party who fails to file timely, written objections to the magistrate judge's report p u rs u a n t to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate c o u rt level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S.

1208 (1984 ).1

Objections to the magistrate judge's report and recommendation were

tim e ly filed on March 10, 2010. A de novo review of the record indicates that the magistrate judge's report a c c u r a te ly summarizes this case and the applicable law. Accordingly, the magistrate ju d g e 's report and recommendation is affirmed, plaintiffs' Motion to Remand is G R A N T E D . This case is remanded to the South Carolina Court of Common Pleas for d is p o s itio n .

A N D IT IS SO ORDERED. David C. Norton U n ite d States District Judge C h a rle s to n , South Carolina M a rc h 18, 2010

NOTICE OF RIGHT TO APPEAL

T h e parties are hereby notified that any right to appeal this Order is governed by R u le s 3 and 4 of the Federal Rules of Appellate Procedure

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report.

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