Holmes v. Granuaile LLC et al

Filing 129

ORDER Adopting 124 Report and Recommendation and granting 100 Motion for Summary Judgment filed by L Walsh, James P Walsh, Granuaile LLC. The Court agrees with the Magistrate Judge that Plaintiff has failed to present evidence sufficient to create a genuine issue of material fact as to her claims. The R&R is adopted and the Defendants' Motion for Summary Judgment is granted. Signed by Honorable Bruce Howe Hendricks on 1/29/2019. (vdru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Cynthia Holmes,

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Plaintiff,
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v.
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Granuaile LLC; James P. Walsh,
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individually and as related to Granuaile )
LLC; and L. Walsh, individually and as )
related to Granuaile LLC,
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Defendants.
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________________________________)

Civil Action No. 2:16-3969-BHH
ORDER

This matter is before the Court upon Plaintiff’s pro se amended complaint asserting
several state law claims against the named Defendants. Defendants filed a motion for
summary judgment on June 19, 2018, and the matter was referred to a United States
Magistrate Judge for initial review in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.). On October 31, 2018, Magistrate Judge Bristow
Marchant issued a report and recommendation (“Report”) outlining the issues and
recommending that the Court grant Defendants’ motion for summary judgment based on
Plaintiff’s failure to present evidence sufficient to create a genuine issue of material fact as
to her claims.
Attached to the Report was a notice advising Plaintiff of her right to file specific,
written objections to the Report within fourteen days after being served with a copy of the
Report. Pursuant to Rule 5(b)(2)(C) of the Federal Rules of Civil Procedure, the date of
service is the date the Report was mailed to Plaintiff. A party receives three additional days
to file objections if served by mail or otherwise allowed under Rule 6 of the Federal Rules

of Civil Procedure. Here, adding three days of mail time, and taking into account weekend
days, Plaintiff needed to file her objections on or before Monday, November 19, 2018.1
However, Plaintiff did not file her objections with the Court until November 26, 2018, and
therefore, the Court finds Plaintiff’s objections untimely.2
“[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.’” See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note); see also Wells v. Shriner Hosp., 109 F.3d 198, 201 (4th Cir. 1997)
(noting that the timely filing of objections to a magistrate judge’s report and
recommendation is necessary to preserve appellate review of the substance of the
recommendation when the parties have been warned of the consequence of
noncompliance), and Darby v. South Carolina, 355 F. App’x 751 (4th Cir. Dec. 11, 2009)
(“The district court was under no obligation to consider Darby’s objections because they
were untimely.”).
The Court has reviewed the record and the applicable law and finds no clear error

1
Pursuant to Rule 6 of the Federal Rules of Civil Procedure, the Court excludes the date of mailing,
October 31, 2018, and counts every day including intermediate Saturdays and Sundays, and because fourteen
days, plus three additional days allowed for service by mail, ended on Saturday, November 17, 2018, the
period continued to run until the end of Monday, November 19, 2018.
2

In their response to Plaintiff’s late objections, Defendants point out their untimeliness. Thereafter,
Plaintiff filed an affidavit stating that she served Defendants with her objections on November 19, 2018, as
indicated by the certificate of service filed with her objections; however, even if Plaintiff did serve her
objections on Defendants in a timely manner, this does not cure her failure to timely file her objections with
the Court.

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on the face of the record.3 In all, the Court agrees with the Magistrate Judge that this
action is entitled to summary judgment because Plaintiff has failed to present any evidence
sufficient to create a genuine issue of material fact as to her claims: (a) that the
construction of the driveway on the neighboring property caused an unreasonable
interference with Plaintiff’s use and enjoyment of her property; (b) that the Defendants were
negligent in the construction of the driveway; (c) that the construction of the driveway
resulted in an unlawful trespass by Defendants onto Plaintiff’s property; or (d) that the
construction of the driveway unjustly enriched Defendants by causing a reduction in the
value of her property. The Magistrate Judge thoroughly reviewed the evidence of record,
noting that Plaintiff’s own expert testimony does not provide sufficient evidence to create
a genuine issue of material fact as to Plaintiff’s claims and that the documentary evidence
contradicts Plaintiff’s assertions in her affidavits that Defendants acted in contravention of
the permits and approvals they received to construct the driveway. As the Magistrate
Judge explained, Plaintiff cannot defeat summary judgment by making conclusory,
unsupported allegations.
Ultimately, because the Court agrees with the Magistrate Judge that Plaintiff has
failed to present evidence sufficient to create a genuine issue of material fact as to her
claims, the Court hereby adopts and specifically incorporates herein the Magistrate
Judge’s Report (ECF No. 124) and grants Defendants’ motion for summary judgment (ECF
No. 100).
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In addition, the Court notes that even if it were to conduct a de novo review of those portions of the
Magistrate Judge’s Report to which Plaintiff objects, it would still affirm the Magistrate Judge’s decision.
Plaintiff’s objections do not provide any basis, either factual or legal, to deviate from the Magistrate Judge’s
extremely thorough analysis; instead, Plaintiff merely rehashes the same arguments already considered and
properly rejected by the Magistrate Judge.

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AND IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
January 29, 2019
Charleston, South Carolina

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