Love v. Ortiz

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26], GRANTING PLAINTIFFS MOTION TO DISMISS [DKT. NO. 40], AND DISMISSING THIS CASE WITHOUT PREJUDICE. Court ADOPTS the R&R Dkt. No. 26 ; GRANTS Loves Motion to Dismiss Dkt. No. 40 ; DENIES AS MO OT Ortizs Motion to Dismiss Dkt. No. 15 ; DENIES AS MOOT Loves Motion for Extension of Time to Gather Evidence Dkt. No. 19 ; DENIES AS MOOT Loves Motion for Reconsideration Dkt. No. 22 ; DENIES AS MOOT Loves Motion to Alter and/or Amend the Co mplaint Dkt. No. 23 ; DENIES AS MOOT Loves Motion to Expand the Record Dkt. No. 25 ; DENIES AS MOOT Loves Motion to Hold in Abeyance Dkt. No. 31 ; DENIES AS MOOT Loves Second Motion to Expand the Record Dkt. No. 32 ; WAIVES Loves obligation to pay the filing fee; and DISMISSES this case WITHOUT PREJUDICE for lack of subject matter jurisdiction. Clerk is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 5/12/2017. (copy via certified mail to pro se Plaintiff and pro se defendant)(jmm) (Additional attachment(s) added on 5/12/2017: # 1 Certified Mail Return Receipt) (jmm). (Additional attachment(s) added on 5/12/2017: # 2 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TAWAYNE D. LOVE,
Plaintiff,
v.

//

CIVIL NO. 1:16CV171
(Judge Keeley)

DIVINE ORTIZ,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
On August 18, 2016, the pro se plaintiff, Tawayne D. Love
(“Love”),1 filed a complaint against the pro se defendant, Divine
Ortiz

(“Ortiz”),

alleging

that

Ortiz

breached

the

parties’

publishing contract (Dkt. No. 1). Pursuant to the contract, Ortiz
and his company, ZitrO Publications, agreed to publish Love’s
novel, Chasing a Dream. Id. at 1. Love alleges that Ortiz failed to
properly edit the work, market the work, and pay royalties for
sales of the work. Id. at 7-8. For relief, he seeks $1,000 in
actual damages and $250,000 in punitive damages. Id. at 8. Pursuant
to 28 U.S.C. § 636 and the local rules, the Court referred the
action to the Honorable Michael J. Aloi, United States Magistrate
Judge (Dkt. No. 3).

1

Love is currently incarcerated at Federal Correctional
Institution, Gilmer.

LOVE v. ORTIZ

1:16CV171

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
On September 8, 2016, Magistrate Judge Aloi granted Love’s
motion for leave to proceed in forma pauperis (Dkt. Nos. 5; 7), and
the United States Marshals Service served the complaint on Ortiz’s
mother on November 2, 2016 (Dkt. No. 10). When Ortiz failed to file
a timely answer or responsive pleading, Magistrate Judge Aloi
directed the Clerk to enter default, and the Clerk did so on
December 1, 2016 (Dkt. Nos. 11; 12). On December 14, 2016, however,
Ortiz filed a motion to dismiss the complaint (Dkt. No. 15).
Magistrate Judge Aloi construed the motion in part as a motion to
set aside entry of default, and he set aside the Clerk’s entry of
default on December 20, 2016 (Dkt. No. 17). Thereafter, Love filed
a number of motions, including a motion seeking leave to amend his
complaint and a response to Ortiz’s motion to dismiss (Dkt. Nos.
23; 25).2
On February 2, 2017, Magistrate Judge Aloi filed a Report and
Recommendation (“R&R”) recommending that the Court dismiss Love’s
complaint without prejudice because his allegations failed to
satisfy the $75,000 amount-in-controversy requirement of diversity

2

Love also filed several letters seeking the reentry of
default, an extension of time to gather evidence, and an order
directing Ortiz to disclose an addendum to the parties’ contract
(Dkt. Nos. 19; 22).
2

LOVE v. ORTIZ

1:16CV171

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
jurisdiction (Dkt. No. 26). First, he reasoned that punitive
damages are unavailable in a breach of contract case unless the
conduct “constitutes an independent, intentional tort,” such as
fraud, malicious misconduct, or misrepresentation, which Love did
not allege. Id. at 3. Second, Magistrate Judge Aloi reasoned that,
even had Love alleged such a distinct tort, $250,000 in punitive
damages does not bear a reasonable relationship to the alleged
$1,000

in

actual

damages.

Therefore,

Magistrate

Judge

Aloi

recommended that the Court dismiss the case and deny all pending
motions as moot. Id. at 4.
On February 21, 2017, Love filed objections to the R&R, as
well as a renewed motion seeking leave to amend his complaint (Dkt.
Nos. 30; 31). He conceded that Magistrate Judge Aloi’s assessment
of the amount in controversy is “fair,” but argued that his “issues
are predicated upon further factual development” (Dkt. No. 30 at
2). Love avered that he “was not aware that these facts were
necessary to plead in the body of the complaint,” but that they
“became relevant only during discovery” (Dkt. No. 31 at 1). If
permitted to amend, Love intended to supplement his complaint with
allegations regarding the “commercial ramifications of improperly
edited e-books,” the number of books actually sold, and the effects
3

LOVE v. ORTIZ

1:16CV171

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
of being denied the ability to purchase copies of the book for
resale. Id. at 2. He further argued that “copies of telephone
conversations from the B.O.P. . . . are necessary to show [Ortiz’s]
malicious intent” to “prey[] upon writers who are incarcerated”
(Dkt. No. 30 at 3).
On April 7, 2017, noting that Love had failed to file a
proposed amended complaint as required by LR Civ P 15.01, the Court
directed him to do so by May 5, 2017 (Dkt. 35 at 4). It further
indicated that, upon receipt of Love’s proposed amended complaint,
it would consider Magistrate Judge Aloi’s recommendations as well
as Love’s motion for leave to file his amended complaint. Id. at 45.
On May 11, 2017, Love filed a “Motion to Dismiss” the case
(Dkt. No. 40). Contrary to his prior objections, Love now concedes
that the R&R is correct that the “action [should] be dismissed for
lack of subject matter jurisdiction”; he advises that he intends to
refile the case in state court. Id. at 1.3 The Court thus CONSTRUES
this filing as a withdrawal of Love’s objections.

3

Love’s Motion to Dismiss
the Bureau of Prisons (“BOP”)
check, as well as all incoming
been satisfied (Dkt. No. 40 at

also requests that the Court direct
“to deduct %15 percent of his paymonies” until his court costs have
1).
4

LOVE v. ORTIZ

1:16CV171

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portion to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the parties do not object. See Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983). Courts will uphold those portions of
an R&R to which no objection has been made unless they are “clearly
erroneous.” See Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005).
Because Love has withdrawn his objections to the R&R, and has
expressed agreement with its conclusion, the Court is under no duty
to conduct a de novo review of Magistrate Judge Aloi’s findings.
Furthermore, following a review of the R&R and the record for clear
error, the Court adopts the opinion of the Magistrate Judge for the
reasons discussed in the R&R (Dkt. No. 26).
In conclusion, the Court:
1.

ADOPTS the R&R (Dkt. No. 26);

2.

GRANTS Love’s Motion to Dismiss (Dkt. No. 40);

3.

DENIES AS MOOT Ortiz’s Motion to Dismiss (Dkt. No. 15);

4.

DENIES AS MOOT Love’s Motion for Extension of Time to
Gather Evidence (Dkt. No. 19);
5

LOVE v. ORTIZ

1:16CV171

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 26],
GRANTING PLAINTIFF’S MOTION TO DISMISS [DKT. NO. 40],
AND DISMISSING THIS CASE WITHOUT PREJUDICE
5.

DENIES AS MOOT Love’s Motion for Reconsideration (Dkt.
No. 22);

6.

DENIES AS MOOT Love’s Motion to Alter and/or Amend the
Complaint (Dkt. No. 23);

7.

DENIES AS MOOT Love’s Motion to Expand the Record (Dkt.
No. 25);

8.

DENIES AS MOOT Love’s Motion to Hold in Abeyance (Dkt.
No. 31);

9.

DENIES AS MOOT Love’s Second Motion to Expand the Record
(Dkt. No. 32);

10.

WAIVES Love’s obligation to pay the filing fee; and

11.

DISMISSES this case WITHOUT PREJUDICE for lack of subject
matter jurisdiction.

It is so ORDERED.
The Clerk is directed to transmit copies of this Order to the
pro se plaintiff and pro se defendant by certified mail, return
receipt requested, and to enter a separate judgment order.
DATED: May 12, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

6