Sweigert v. Goodman

Filing 27

ORDER AND OPINION RULING ON 22 REPORT AND RECOMMENDATION of Magistrate Judge Bristow Marchant. Plaintiff's motions to show cause (Dkt. Nos. 7 , 8 ), motion to strike (Dkt. No. 12 ) and motion for leave to amend his m otion to show cause (Dkt. No. 17 ) are DENIED WITHOUT PREJUDICE. Defendant's motion to dismiss (Dkt. No. 9 ) is DENIED WITHOUT PREJUDICE. This case is TRANSFERRED to the United States District Court for the Southern District of New York. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/17/2018. (sshe, )

2:18-cv-01633-RMG

Date Filed 09/17/18

Entry Number 27

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
D. George Sweigert,
a/k/a David George Sweigert,
Plaintiff,
v.
Jason Goodman,
Defendant.
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Civil Action No . 2:18-1633-RMG

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ORDER AND OPINION

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Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
recommending that the Court deny without prejudice Plaintiff D. George Sweigert's motions to
show cause (Dkt. Nos . 7, 8), motion to strike (Dkt. No. 12) and motion for leave to amend his
motion to show cause (Dkt. No . 17); deny without prejudice Defendant Jason Goodman' s motion
to dismiss (Dkt. No. 9); and transfer this case to the United States District Court for the Southern
District of New York. For the reasons set forth below, the Court adopts the R & R as the Order
of the Court. Plaintiffs motions to show cause, motion to strike and motion for leave to amend
are denied without prejudice; Defendant ' s motion to dismiss is denied without prejudice; and the
Court transfers this case to the United States District Court for the Southern District of New
York.

I.

Background
Mr. Swiegert is a pro se litigant claiming in part that Defendant Goodman, along with his

companies Multimedia System Design, Inc. and/or Crowd Source the Truth ("CSTT"), is
violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, by
coordinating to "stag[ e] fake news" relating to an alleged 2017 bomb threat hoax in Charleston,
South Carolina. (Dkt. No. 5 at 8.) Plaintiff alleges that he is a California licensed Emergency
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Medical Technician who has been "targeted" by CSTT and its "community of racketeering
operators" for publishing a "white paper about the defendant." (Id. at 1, 9.) Plaintiff contends
that Defendant, a Manhattan resident, and others are "injecting themselves into the plaintiffs
affairs . .. to destroy his life." (Id. at 9, 14.)
Plaintiff filed a motion to show cause "as to why the Defendant should not be deemed to
have received constructive notice of pending lawsuit" (Dkt. No. 7); a motion to show cause "for
an order as to why the Defendant should not restrained by an injunction to cease and desist
Defendant' s copyright infringement" (Dkt. No. 8); and a motion to amend the latter motion to
show cause (Dkt. No. 17). Defendant Goodman filed a motion to dismiss (Dkt. No . 9), which
Plaintiff moved to strike (Dkt. No. 12).

II.

Legal Standard
The Magistrate Judge makes a recommendation to the Court that has no presumptive

weight and the responsibility to make a final determination remains with the Court. See, e.g.,

Mathews v. Weber, 423 U.S . 261, 270-71 (1976) . The Court may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(l )(C). The Court "makes a de nova determination of those portions of the report or
specified proposed findings or recommendations to which objection is made. " Id.

When no

objection is made, the Court reviews the R & R to "only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory
committee' s note. In the absence of objection, the Court need not give any explanation for
adopting the Magistrate Judge' s analysis and recommendation. See, e.g., Camby v. Davis, 718
F .2d 198, 199 (4th Cir. 1983) ("In the absence of objection . . . we do not believe that it requires

any explanation.").

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2:18-cv-01633-RMG

III.

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Discussion
The Court finds that the Magistrate Judge ably addressed the issues raised by Plaintiffs

and Defendant ' s motions and correctly concluded, to which Plaintiff has not objected, that each
motion should be denied as premature.

Federal Rule of Civil Procedure 4 dictates that the

Plaintiff present a properly completed summons to the clerk, who must issue it for service on the
Defendant. Here, no summons has been issued and, therefore, service of process by Plaintiff is
premature.

As a result, Plaintiffs motions are also premature, as is Defendant's motion to

dismiss.
Regarding proper venue, the Court may transfer a case "in the interest of justice" to any
district in which it could have been brought. 28 U.S.C. §§ 1404(a), 1406(a). A case may be
brought in " a judicial district in which any defendants resides, if all defendants are residents of
the State in which the district is located; a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred" or, otherwise, "any judicial district in
which any defendant is subject to the court's personal jurisdiction with respect to such action. "
18 U.S.C. § 139l(b). As the Magistrate Judge correctly identified by appropriately liberally
construing the Amended Complaint, Plaintiff could have brought his case in the District Court
for the Southern District of New York because the Defendant is in Manhattan, New York City is
where a majority of alleged acts by Defendant giving rise to Plaintiffs claims occurred and,
relatedly, where evidence and records relating to those claims are likely maintained. Moreover,
transfer would allow Plaintiffs claims to continue on the merits without re-filing and Plaintiff
has not objected to the Court' s sua sponte transfer. See, e.g., Feller v. Brock, 802 F.2d 722 , 729
n. 7 (4th Cir. 1986) (" If the matter is raised sua sponte, the parties deserve an opportunity to be

heard before a decision is rendered. ").

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IV.

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Conclusion

For the foregoing reasons, the R & R of the Magistrate Judge (Dkt. No. 22) is
ADOPTED as the Order of the Court.

Plaintiff's motions to show cause (Dkt. Nos . 7, 8),

motion to strike (Dkt. No. 12) and motion for leave to amend his motion to show cause (Dkt. No.
17) are DENIED WITHOUT PREJUDICE. Defendant's motion to dismiss (Dkt. No. 9) is
DENIED WITHOUT PREJUDICE.

This case is TRANSFERRED to the United States

District Court for the Southern District of New York.
AND IT IS SO ORDERED.

United States District Court Judge
September /'"", 2018
Charleston, South Carolina

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