Clay v. Countrywide Home Loans

Filing 53

ORDER that the court adopts the 50 Report and Recommendation and incorporates it herein by reference. Defendant's 21 Motion to Dismiss is granted; Plaintiff's 36 Motion for Summary Judgment is denied, and the case dismissed, with preju dice. Plaintiff's 3 Motion for Preliminary Injunction, 37 Motion to amend complaint are denied as moot. Plaintiff's 38 Motion to remove case from state court also is denied. As a home state defendant, Plaintiff is prohibited from removing the foreclosure action on the basis of diversityjurisdiction. See 28 U.S.C. § 1441(b). Signed by Honorable Margaret B Seymour on 1/28/09. (erav, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA B E A U F O R T DIVISION A lb e rt Russell Clay, ) ) C/A No. 9:08-1369-MBS Plaintiff, ) ) v s. ) ORDER ) Countrywide Home Loans, ) ) D e fe n d a n t . ) ____________________________________)

P la in tiff Albert Russell Clay brought this action pro se, asserting that Defendant Countrywide H o m e Loans violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., in various r e s p e c t s . Plaintiff seeks monetary damages and has filed a motion for preliminary injunction (Entry 3 ). T h i s matter is before the court on Defendant's motion to dismiss filed June 4, 2008 (Entry 2 1 ) . By order filed June 6, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), P l a i n t i ff was advised of the dismissal procedures and the possible consequences if he failed to re s p o n d adequately. Plaintiff filed no response to Defendant's motion. However, on August 21, 2 0 0 8 , Plaintiff filed a motion for summary judgment (Entry 36) and motion to amend complaint ( E n t ry 37). On August 21, 2008, Plaintiff also filed a "request for removal of action from state court" (E n try 38), with respect to a foreclosure action in which he is the defendant. Defendant filed a re s p o n se to Plaintiff's motion for summary judgment on September 3, 2008. On November 3, 2008, D e fe n d a n t filed a joint response to Plaintiff's motions to amend complaint and to remove action from s ta te court.

In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant for pretrial handling. On December 19, 2008, th e Magistrate Judge issued a Report and Recommendation in which he recommended that D e fe n d a n t's motion to dismiss be granted, Plaintiff's motion for summary judgment be denied, and t h e case be dismissed, with prejudice. R e co m m e n d atio n . T h e Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e r m i n a t io n of any portions of the Report and Recommendation to which a specific objection is m a d e . The court may accept, reject, or modify, in whole or in part, the recommendation made by the M a gis tra te Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of objections to the Report, this court is not required to give any e x p l a n a t i o n for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court has carefully reviewed the record and concurs in the recommendation of the M a gis tra te Judge. The court adopts the Report and Recommendation and incorporates it herein by re fe re n c e . Accordingly, Defendant's motion to dismiss (Entry 21) is granted; Plaintiff's motion for s u m m a ry judgment (Entry 36) is denied, and the case dismissed, with prejudice. Plaintiff's motion fo r preliminary injunction (Entry 3), motion to amend complaint (Entry 37) are denied as moot. P l a in t i ff' s motion to remove case from state court also is denied. As a home state defendant, P l a i n t i ff is prohibited from removing the foreclosure action on the basis of diversity Plaintiff filed no objections to the Report and

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j u r i s d i c t io n . See 28 U.S.C. § 1441(b). IT IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina J a n u a ry 28, 2009.

NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified that he has the right to appeal this order pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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