Boveda Asset Management, Inc v. PNC Financial Services Group, Inc, The et al

Filing 24

OPINION and ORDER adopting in part 21 Report and Recommendation, dismissing the action with prejudice to filing a new action relating to the same claims (on behalf of the corporation) without counsel and, without prejudice to filing a new action relating to the same claims through counsel. Signed by Honorable Cameron McGowan Currie on 12/12/2016. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Boveda Asset Management, Inc.,

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Plaintiff,
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v.
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The PNC Financial Services Group, Inc., doing
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business as PNC Bank; Shameka N. Grier-McCray, )
Assistant Vice President; Erica, PNC
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Regional Loss Prevention Manager for Mrs.
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Grier-McCray,
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Defendants.
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_________________________________________ )

C/A NO. 3:16-2651-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint. The matter was removed to
this court by Defendants.
Because Plaintiff is proceeding pro se, and in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 (B)(2)(e), DSC, the matter was referred to United States Magistrate Judge Paige
J. Gossett for pre-trial proceedings. On October 18, 2016, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending the complaint be dismissed with prejudice based on
Plaintiff’s failure to comply with a court order (to retain counsel) and, consequently, to prosecute
the action. ECF No. 21 (noting Plaintiff failed to obtain counsel despite being ordered to do so and
being given an extension of time after missing its original deadline).1

1

The Report notes Defendants filed a motion to dismiss before the Report was issued. That
motion was, however, filed only one day prior to entry of the Report. The court does not, therefore,
rely on the motion to dismiss in adopting the Report.
1

The Report advised Plaintiff of the procedures and requirements for filing objections to the
Report and the serious consequences if it failed to do so. Plaintiff did not file any objections.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).. The court reviews the Report 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.”) (citation omitted).
After reviewing the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees that the matter should be dismissed
pursuant to Rule 41(b). However, because the underlying reason for the dismissal is Plaintiff’s
failure to obtain counsel, the court does not adopt the recommendation that the matter be dismissed
with prejudice.
Dismissal for failure to obtain counsel is premised on the rule that, because it is not a natural
person, a corporation may not proceed without counsel. See Report at 1 (citing, e.g., Eagle Assocs.
v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). Under this rule, even the sole owner of
a corporation may not act as “pro se” counsel for the corporation because the owner and corporation
2

are legally distinct “persons.” Given the owner’s lack of legal authority to act as “pro se” counsel
for the corporation, it is questionable whether the corporation may be penalized by dismissal of its
claims with prejudice where the only basis for dismissal is the failure to obtain counsel.
The court, therefore, dismisses the action with prejudice to filing a new action relating to the
same claims (on behalf of the corporation) without counsel. Dismissal is without prejudice to filing
a new action relating to the same claims through counsel. However, if Plaintiff does file a new
action, Defendants may seek any resulting duplicative costs and expenses including attorney’s fees
incurred in this action.

Accordingly, the court adopts and incorporates the Report and

Recommendation by reference except as modified above.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
Cameron McGowan Currie
Senior United States District Judge
December 12, 2016
Columbia, South Carolina

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