Zimmerman v. Bank of America
ORDER RULING ON REPORT AND RECOMMENDATION Adopting 16 REPORT AND RECOMMENDATION and granting 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Bank of America. Plaintiff's claims are dismissed without prejudice with leave to file an amended complaint within 30 days of the entry of this order. ( Amended Complaint due by 2/27/2017.). Signed by Honorable Joseph F Anderson, Jr on 1/26/17. (mflo, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
C/A No. 3:16-2452-JFA-SVH
Bank of America, N.A.,
The plaintiff, Willie Zimmerman, (“Zimmerman” or “Plaintiff”), proceeding pro se,
originally filed this action for negligent misrepresentation and petition to reinstate a foreclosure
sale, in the Richland County Court of Common Pleas. Defendant Bank of America, N.A.
(“Defendant” or “BANA”), then removed the case to this court on July 7, 2016. (ECF No. 1). In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case was
referred to the Magistrate Judge. Thereafter, BANA filed a motion to dismiss for failure to state a
claim. (ECF No. 5).
The Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) and opines that Defendant’s motion to dismiss should be granted
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.). The Magistrate Judge makes only a recommendation to this
court. The recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is
charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objection is made, and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
with leave to file an amended complaint as to the claim for negligent misrepresentation. (ECF No.
16). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this
Court incorporates those facts and standards without a recitation.
Plaintiff was advised of his right to object to the Report, which was entered on the docket
on December 1, 2016. Plaintiff filed objections to the Report on December 16, 2016, (ECF No.
19), and Defendant failed to file a reply within the time allotted. Thus, this matter is ripe for
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct
a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection
is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. &
Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the
Report of the Magistrate, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Here, Plaintiff makes vague and generalized objections to the dismissal of his negligent
misrepresentation claim. Although vague, three objections are discernable within Plaintiff’s
memorandum. However, each objection is without merit.
Initially, Plaintiff objects to the application of Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff offers no support for this objection other than to say “[t]he complaint filed by
Plaintiff contained detailed factual matter. The factual matter was accepted as true because it was
from the record of Court Proceedings. The facts were the facts and the results of the factual
situation lead to the misrepresentation by Defendant.” (ECF No. 19 p. 2). This objection fails to
elucidate any error in the Report. Additionally, the Magistrate Judge correctly applied the standard
required for a motion to dismiss for failure to state a claim by stating “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
(ECF No. 16 p. 3) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Therefore, this objection is
Secondly, Plaintiff objects to the finding that “the doctrine of collateral estoppel does not
preclude the court to hear this action.” (ECF No. 19 p. 3). Initially, it is curious that Plaintiff would
object to this conclusion because a finding to the contrary would completely prohibit Plaintiff’s
claim for negligent misrepresentation. However, the Magistrate Judge correctly concluded that the
doctrine of collateral estoppel was not supported by the record because the Richland County
Court’s Order issued in the previous foreclosure case did not specifically address whether BANA
ever made a false misrepresentation. (ECF No. 16 p. 2–3).
Finally, Plaintiff appears to object to the finding that his complaint contains insufficient
factual allegations to support a claim for negligent misrepresentation. In support of this contention,
Plaintiff merely states that “he plead a case and stated a claim for which relief can be granted.”
(ECF No. 19 p. 3). This conclusory statement is unpersuasive. The Magistrate Judge correctly
stated the elements for negligent misrepresentation and indicated that Plaintiff failed to allege those
elements within his complaint. (ECF No. 16 p. 4–5). Additionally, Plaintiff’s complaint fails to
identify any specific false representation made by BANA. Id. Accordingly, the Magistrate Judge
correctly concluded that Plaintiff’s claim for negligent misrepresentation should be dismissed for
failure to state a claim.
After carefully reviewing the applicable laws, the record in this case, as well as the Report,
this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts
and applies the correct principles of law. Accordingly, the Court ADOPTS the Report and
Recommendation (ECF No. 16) and GRANTS Defendant’s motion to dismiss. (ECF No. 5).
Plaintiff’s claims are dismissed without prejudice with leave to file an amended complaint within
30 days of entry of this order. Should Plaintiff fail to timely file an amended complaint, this action,
in its entirety, will be dismissed with prejudice.
IT IS SO ORDERED.
January 26, 2017
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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