Taylor v. Lybrand et al

Filing 28

AMENDED OPINION AND ORDER re 21 Order Ruling on Report and Recommendations. This order is amended in two respects. Neither has any impact on the court's resolution of this matter. Signed by Honorable Cameron McGowan Currie on 9/15/2011. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Charles Taylor,

)
)
Plaintiff,
)
)
v.
)
)
James B. Lybrand of McDonald, McKenzie,
)
Rubin, Miller, and Lybrand, LLP; State Farm
)
Insurance Company, and Thomas Davis,
)
)
Defendants.
)
__________________________________________)

C.A. No. 3:11-1264-CMC-PJG
AMENDED1
OPINION AND ORDER

This matter is before the court for review of the Report and Recommendation (“Report”)
entered on August 2, 2011. Dkt. No. 17. For the reasons set forth below, the Report is adopted and
this action is dismissed for lack of subject matter jurisdiction. This dismissal is, therefore, without
prejudice to refiling in an appropriate (non-federal) jurisdiction or pursuit of post-judgment relief
in the state court system.2
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with this court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is

1

This order is amended in two respects. One modification was requested by Defendant
James B. Lybrand, Esquire (“Lybrand”), who moved to alter or amend the judgment. The other
modification was requested by Plaintiff in his responsive memorandum. Both modifications relate
to the court’s characterization of Plaintiff’s allegations. Neither has any impact on the court’s
resolution of this matter. See infra nn.3, 4.
2

Whether Plaintiff has waived his right to such relief is a matter for the state court to decide.

made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in 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.’”) (quoting
Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
Through this action, Plaintiff, who is proceeding pro se and in forma pauperis, seeks
damages for claims arising out of a state-court civil action. That action related to a motor vehicle
accident between Plaintiff and Defendant Thomas Davis.

Plaintiff alleges that Davis was

represented in the state-court action by Defendant Lybrand and that Defendant State Farm Insurance
Company was Davis’s insurer at the time of the accident.3
Plaintiff alleges that Defendants’ conduct in the state-court action, most particularly the
conduct of Lybrand, was improper or illegal4 and resulted in deprivation of Plaintiff’s right to a fair
trial as well as breach of contract, and slander.5 Plaintiff asserts that State Farm is responsible for

3

This sentence is a combination and modification of two sentences found in the original
order. The modification was made at Lybrand’s request and clarifies that the court is referring to
Plaintiff’s allegations, not making a finding of fact. See Dkt. No. 25 (Lybrand’s motion to alter or
amend). It has no impact on the court’s ultimate determination.
4

The words “or illegal” were added at Plaintiff’s request. See Dkt. No. 26. This addition
refers only to allegations and has no impact on the court’s ultimate determination.
5

The original complaint asserted claims against Lybrand and State Farm for violation of
Plaintiff’s right to a fair trial in violation of the state and federal constitutions. Dkt. No. 1. The
amended complaint added claims for breach of contract and slander against the original two
Defendants and also added Davis as a Defendant. Dkt. No. 12. The original complaint was attached
to and incorporated into the amended complaint. Dkt. No. 12-2; Report at 3-4.
2

Lybrand’s conduct because it hired Lybrand, knew of his actions, and condoned them. Plaintiff’s
claims against Davis, in contrast, are based on his failure to remain knowledgeable of the litigation
and, as the named Defendant, to control Lybrand’s actions.
The Report recommends that the matter be dismissed without prejudice and prior to service
of process because this court lacks subject matter jurisdiction over the dispute. This is because there
is no basis for the assertion of a federal claim and the parties are not completely diverse.6
As the Report explains, any federal claim which might be implied by either the amended or
incorporated original complaint fails because there is no allegation which would support an
inference that any Defendant acted under color of state law. Report at 9 (addressing elements of a
claim under 42 U.S.C. § 1983). Moreover, the federal constitutional rights on which Plaintiff
purports to rely do not address the type of malfeasance alleged here. Report at 8 (noting Sixth
Amendment does not apply to civil actions and Seventh Amendment addresses the right to a jury
trial, not any right relating to an attorney’s litigation-related conduct).7
Plaintiff was advised of his right to object to the Report. He did not file any objection
despite passage of the time allowed for doing so. The court has, therefore, reviewed the Report for
clear error. Finding none, the court adopts the Report in full.

6

The complaint and amended complaint (adding Davis as a Defendant) reveal that Plaintiff,
Lybrand, and Davis are all “residents” of South Carolina. See Report at 7. Nothing in the record
suggests that, despite the common residency, Plaintiff and these two Defendants are citizens of
different states. Thus, complete diversity is lacking.
7

To the extent Plaintiff seeks review a state court judgment, his action would also be barred
by the Rooker-Feldman doctrine. See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
3

CONCLUSION
For the reasons set forth above, the Report and Recommendation is adopted and this action
is dismissed without prejudice to refiling of the action in a proper (non-federal) forum.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
September 15, 2011

4