Danielson v. Infinity Business Group Inc

Filing 87

ORDER adopting 84 Report and Recommendation. It is ordered that Plaintiff's complaint is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). Signed by Honorable Margaret B Seymour on 4/6/2016. (vdru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
William E. Danielson,

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) C/A No. 2:10-268-MBS
Plaintiff,
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vs.
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OPINION AND ORDER
Infinity Business Group, Inc.,
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Defendant.
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____________________________________)
Plaintiff William E. Danielson brought this case in the Court of Common Pleas for Charleston
County, South Carolina, on December 29, 2009, alleging defendant Infinity Business Group, Inc.
owed him money on a promissory note. Defendant removed the action to this court on February 3,
2010. Although Plaintiff initially was represented by counsel, on March 11, 2010, Plaintiff elected
to proceed pro see. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within
action was referred to United States Magistrate Judge Bristow Marchant for pretrial handling. On
March 17, 2010, the Magistrate Judge issued an order in which he directed Plaintiff to notify the
Clerk of Court in writing of any change in address. In the March 17, 2010 order, the Magistrate
Judge specifically cautioned Plaintiff that his failure to comply with the order would subject his case
to dismissal.
On September 7, 2010, Defendant filed a Suggestion of Bankruptcy. On September 14, 2010,
the Magistrate Judge stayed the action pursuant to 11 U.S.C. § 362(a) of the Bankruptcy Code. Since
that time, the Magistrate Judge has received periodic status reports and has issued orders maintaining
the stay of the case pending further order of the court. On September 10, 2015, the copy of the
Magistrate Judge’s September 1, 2015, order maintaining the stay that was sent to Plaintiff was

returned to the Clerk’s Office, marked “FORWARD TIME EXP RTN TO SEND–RETURN TO
SENDER.” On March 8, 2016, a copy of the Magistrate Judge’s March 3, 2016, order maintaining
the stay that was sent to Plaintiff was returned to the Clerk’s Office, marked “RETURN TO
SENDER–NOT DELIVERABLE AS ADDRESSED–UNABLE TO FORWARD.”
On March 9, 2016, the Magistrate Judge issued a Report and Recommendation in which he
noted that Plaintiff had failed to comply with the Magistrate Judge’s March 17, 2010, order.
Accordingly, the Magistrate Judge recommended that the case be dismissed, with prejudice, pursuant
to Fed. R. Civ. P. 41(b). Plaintiff’s copy of the Report and Recommendation was returned to the
Clerk’s Office on March 17, 2016, marked “RETURN TO SENDER–NOT DELIVERABLE AS
ADDRESSED–UNABLE TO FORWARD.”
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo
determination of any portions of the Report and Recommendation to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the
Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
It appears Plaintiff has abandoned the within action and has failed to comply with an order
of the court. The court adopts the Magistrate Judge’s recommendation that the case be dismissed
pursuant to Rule 41(b). However, because it does not appear that Plaintiff received a warning that
noncompliance would result in dismissal with prejudice, see e.g., Scott v. White, Civ. Action No.

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2:08cv97, 2014 WL 10321131 (E.D. Va. 2014), the within action will be dismissed without
prejudice.
For the reasons stated in the Report and Recommendation and herein, Plaintiff’s
complaint is dismissed, without prejudice, pursuant to Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
April 6, 2016.

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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