Whittington et al v. US Bank National Association et al

Filing 40

ORDER AND OPINION: The Report and Recommendation of the Magistrate Judge is adopted and incorporated by reference. Therefore, it is ORDERED that Defendants' Motion to Dismiss for lack of subject matter jurisdiction is GRANTED and this action is DISMISSED without prejudice. Signed by Honorable Mary G Lewis on 5/23/2013. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Civil Action No.: 4:12-CV-03167-MGL
)
)
Plaintiffs, )
)
ORDER AND OPINION
v.
)
)
US Bank National Association, Trustee;
)
Wells Fargo Bank National Association and )
America’s Servicing Company; and Rogers )
Townsend & Thomas PC,
)
)
Defendants. )
__________________________________

Charles T. Whittington, Linda D.
Whittington,

Plaintiffs Charles T. Whittington and Linda D. Whittington (“Plaintiffs”), proceeding
pro se, brought this action against Defendants US Bank National Association, Trustee;
Wells Fargo Bank National Association and America’s Servicing Company; and Rogers
Townsend & Thomas PC (“Defendants”) concerning Defendants’ involvement in a
foreclosure action currently pending in the South Carolina Court of Common Pleas in Horry
County. On November 29, 2012, Defendant Rogers Townsend and Thomas PC filed a
Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) (ECF
No. 16) and Defendants US Bank National Association, Trustee and Wells Fargo Bank
National Association and America’s Servicing Company filed a Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) (ECF No. 18) and a Supplemental
Memorandum in Support. (ECF No. 30.) Plaintiffs filed their response to both motions on
January 2, 2013 (ECF Nos. 25 & 26) and a reply in opposition to the Supplemental
Memorandum in Support on March 13, 2013. (ECF No. 33.)
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A) and

Local Civil Rule 73.02(B)(2)(e) D.S.C., all pretrial matters in cases involving pro se litigants
are referred to a United States Magistrate Judge for consideration. Magistrate Judge
Kaymani D. West has prepared a thorough Report and Recommendation which
recommends that Defendants’ Motions to Dismiss be granted. (ECF No. 34.) The April 30,
2013 Report and Recommendation sets forth in detail the relevant facts and standards of
law on this matter, and the court incorporates such without a recitation.
The court is charged with making a de novo determination of any portion of the
Report and Recommendation 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. 28
U.S.C. § 636(b). 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.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005). Furthermore, failure to file specific written
objections to the Report and Recommendation results in a party’s waiver of the right to
appeal from the judgment of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);
Wright v. Collins, 766 F.2d 841 (4th Cir.1985); United States v. Schronce, 727 F.2d 91 (4th
Cir.1984).
The Magistrate Judge recommends that Defendants’ Motions to Dismiss (ECF Nos.
16 & 18) be granted because complete diversity does not exist nor have Plaintiffs stated
a basis for federal question jurisdiction even under a broad and lenient interpretation of
Plaintiffs’ Complaint and responses to Local Civil rule 26.01 Interrogatories as well as other
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statements provided after Plaintiffs filed their complaint. Thus, the Magistrate Judge found
subject matter jurisdiction lacking and recommends that Defendants’ Rule 12(b)(1) Motions
be granted and Plaintiffs’ Complaint be dismissed without prejudice. Plaintiffs were advised
of their right to file objections to the Report and Recommendation. (ECF No. 34-1.)
Plaintiffs have filed no objections to the Report and Recommendation, and the time for
doing so has expired.
After reviewing the motions, the record, and the Report and Recommendation of the
Magistrate Judge, the court finds no clear error and the recommendation to be proper.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and
incorporated by reference. Therefore, it is ORDERED that Defendants’ Motion to Dismiss
for lack of subject matter jurisdiction is GRANTED and this action is DISMISSED without
prejudice.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
May 23, 2013

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