Stehney v. Ferguson et al

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION adopting 25 Report and Recommendation, granting 15 Motion to Dismiss, filed by Michael Stehney, Jr, denied as moot 29 Motion for Joinder filed by Ronald E Ferguson Signed by Honorable G Ross Anderson, Jr on 3/19/15. (alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
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)
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Plaintiff,
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v.
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Ronald E. Ferguson, Ronald J.
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Ferguson, and Susan M. Ferguson,
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)
Defendants. )
)
________________________________ )
Michael Stehney, Jr.,

C.A. No. 6:14-cv-03876-GRA
ORDER
(Written Opinion)

This matter comes before this Court for review of United States Magistrate
Judge Kevin F. McDonald’s Report and Recommendation (“the Report”) made in
accordance with 28 U.S.C. § 636(b)(1)(B), and filed on December 12, 2014. ECF No.
25.
BACKGROUND
The Plaintiff originally filed this case in the Court of Common Pleas for
Greenville County on March 25, 2013, alleging: negligence, negligence per se,
intentional tort, nuisance, trespass, and violation of restrictive covenants. ECF No. 12 at 6-8. The Defendants were served on April 1 and 3, 2013. ECF Nos. 15-1 & 152. The Defendants then served the Plaintiff with an answer and counterclaims on
April 22, 2013.

ECF No. 1-2 at 24.

On October 3, 2014, the Defendants then

removed the action to this Court, pursuant to 28 U.S.C. § 1441. ECF No. 1-1. The
Plaintiff filed a Motion to Dismiss from Federal Court and Remand to State Court on
November 1, 2014. ECF No. 15. The Defendants filed responses in opposition on

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December 8, 2014. ECF Nos. 21 & 22. Magistrate Judge McDonald then made a
careful review of the Motion and now recommends that this Court grant the Motion.
ECF No. 25. Thereafter, on January 5, 2015, the Defendants filed Objections to the
Report. ECF Nos. 30 - 31. The Plaintiff filed a Reply to the Objections on January 6,
2015.

ECF No. 33.

For the reasons discussed herein, this Court adopts the

Magistrate Judge’s Report in its entirety and grants the Motion.
STANDARD OF REVIEW
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 this Court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). This Court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and this
Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may
also "receive further evidence or recommit the matter to the magistrate with
instructions." Id.
In order for objections to be considered by a United States District Judge, the
objections must be timely filed and must specifically identify the portions of the Report
and Recommendation to which the party objects and the basis for the objections.
Fed. R. Civ. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir.
1984); Wright v. Collins, 766 F.2d 841, 845–47 nn.1–3 (4th Cir. 1985). “Courts have .
. . held de novo review to be unnecessary in . . . situations when a party makes
general and conclusory objections that do not direct the court to a specific error in the

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magistrate’s proposed findings and recommendation.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to the
Report and Recommendation, this Court is not required to give any explanation for
adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
In this case, January 5, 2015 was the deadline for filing objections. ECF No. 25. The
Defendants filed Objections on January 5, 2015.1 ECF No. 30 - 31.
DISCUSSION
The Defendants have two objections to the Report. Id. First, they argue the
removal of the case was timely based on the date of correspondence to Plaintiff’s
counsel regarding the presence of federal waters.

Id. at 6.

The Report never

explicitly stated that the removal was untimely and, as such, this objection is not
determinative.
Second, the Defendants argue that Plaintiff’s property is “subject to Federal
laws and permitting through the Clean Water Act and [National Pollutant Discharge
Elimination System] permitting.” Id. at 8. Under the well-pleaded complaint rule, the
plaintiff’s complaint is determinative of federal jurisdiction. In other words, the federal
question must be clear from the face of the complaint and cannot be based on a
federal law defense. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808
(1986). As the Report states, “[t]he plaintiff did not allege a Clean Water Act violation
in his complaint, and the defendants’ belief that he did or should have is of no
consequence.” ECF No. 25 at 3. Accordingly, the Defendants’ objections concerning
federal question jurisdiction are overruled.
1

All three Defendants filed the same Objections with only the name of the person
objecting changed in each document.
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After a thorough review of the record, this Court finds no error and that the
Magistrate Judge’s Report accurately summarizes the case and the applicable law.
Accordingly, the Report is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Dismiss from Federal
Court and Remand to State Court is GRANTED. This case is hereby REMANDED to
the Court of Common Pleas for Greenville County. Ronald J. Ferguson’s Motion for
Joinder is DENIED as MOOT.
IT IS SO ORDERED.
________________________________
G. Ross Anderson, Jr.
Senior United States District Judge
March 19 , 2015
Anderson, South Carolina

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