Mayley v. United States of America et al

Filing 60

ORDER ADOPTING 55 REPORT AND RECOMMENDATIONS. Petitioners Amended Petition to Quash Summons [Doc. 14] is DENIED, Motionto Dismiss of Carolina First Bank [Doc. 23] is GRANTED, and Respondent Pavilion Towers,LLCs Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. 42] is GRANTED. Signed by Honorable J Michelle Childs on 11/1/11. (jtho, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION

Randolph Warren Mayley,

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Petitioner,
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v.
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United States of America; Carolina First;
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and Pavilion Towers, LLC,
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Respondents.
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___________________________________ )

C.A. No.: 8:11-cv-00896-JMC
OPINION AND ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation [Doc.
55]. The Magistrate Judge’s Report and Recommendation, filed on October 13, 2011, recommends
that Petitioner’s Amended Petition to Quash Summons [Doc. 14] be denied, Motion to Dismiss of
Carolina First Bank [Doc. 23] be granted, and Respondent Pavilion Towers, LLC’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. 42] be granted.

The Report and

Recommendation sets forth in detail the relevant facts and legal standards on this matter, and the
court incorporates the Magistrate Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. 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 objections are made, and the court

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may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The parties were advised of their right to file objections to the Report and Recommendation
[Doc 55-1]. However, the parties have not filed objections.
In the absence of specific objections to the Magistrate Judge’s Report and Recommendation,
this court is not required to give any explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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) (quoting Fed. R. Civ. P. 72
advisory committee’s note). Furthermore, failure to file specific objections constitutes a waiver of
a party’s right to further judicial review, including appellate review, if the recommendation is
accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984).

After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. 55]. It is therefore
ORDERED that Petitioner’s Amended Petition to Quash Summons [Doc. 14] is DENIED, Motion
to Dismiss of Carolina First Bank [Doc. 23] is GRANTED, and Respondent Pavilion Towers,
LLC’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. 42] is GRANTED.

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IT IS SO ORDERED.

United States District Judge
November 1, 2011
Greenville, South Carolina

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