Neely v. Synchrony Bank

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANT'S MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION TO REMAND, AND DISMISSING ACTION WITHOUT PREJUDICE: The Court ADOPTS 22 Report and Recommendation; GRANTS Synchrony's [7 ] Motion to Dismiss; DENIES Neeley's 13 Motion to Remand; and DISMISSES this action WITHOUT PREJUDICE. Signed by Chief District Judge Thomas S Kleeh on 1/17/2023. (copy Plaintiff)(cnd) (Additional attachment(s) added on 1/17/2023: # 1 Certified Mail Return Receipt) (cnd).

Case 2:22-cv-00010-TSK-MJA Document 26 Filed 01/17/23 Page 1 of 3 PageID #: 131

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID W. NEELEY,
Plaintiff,
v.

Civil Action No. 2:22-cv-10

SYNCHRONY BANK,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 22],
GRANTING DEFENDANT’S MOTION TO DISMISS [ECF NO. 7],
DENYING PLAINTIFF’S MOTION TO REMAND [ECF NO. 13],
AND DISMISSING ACTION WITHOUT PREJUDICE
On June 30, 2022, the plaintiff, David Neeley (“Neeley”),
proceeding pro se commenced this action in the Magistrate Court of
Pocahontas County, West Virginia [ECF No. 1-1], alleging that the
defendant, Synchrony Bank (“Synchrony”), violated the Fair Credit
Reporting Act. Thereafter, Synchrony removed this case to this
Court. Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi [ECF No. 5]
On

July

29,

2022,

Synchrony

moved

to

dismiss

Neeley’s

complaint for failure to state a claim [ECF No. 7]. On August 15,
2022, Neeley moved to remand this case to state court [ECF No.
13]. On September 28, 2022, the magistrate judge entered a Report
and

Recommendation

Neeley’s

motion

to

(“R&R”),
remand

recommending
because

it

that
has

the

Court

federal

deny

question

Case 2:22-cv-00010-TSK-MJA Document 26 Filed 01/17/23 Page 2 of 3 PageID #: 132
NEELEY V. SYNCHRONY BANK

2:22cv110

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 22],
GRANTING DEFENDANT’S MOTION TO DISMISS [ECF NO. 7],
DENYING PLAINTIFF’S MOTION TO REMAND [ECF NO. 13],
AND DISMISSING ACTION WITHOUT PREJUDICE
jurisdiction over this matter, pursuant to 28 U.S.C. § 1331 [ECF
No.

22

at

4-5].

Synchrony’s

motion

He
to

also

recommended

dismiss

and

that

dismiss

the
this

Court
case

grant

without

prejudice because Neeley has failed to state a claim upon which
relief may be granted. Id. at 5-9.
The R&R informed Neeley that he had fourteen (14) days from
the

date

of

objections,

service

of

identifying

the

R&R

to

the

portions

file
of

“specific
the

written

Report

and

Recommendation to which objection is made, and the basis for such
objection.”

It further warned him that the “[f]ailure to file

written objections . . . shall constitute a waiver of de novo
review by the District Court and a waiver of appellate review by
the Circuit Court of Appeals.”

Plaintiff accepted service of the

R&R on October 4, 2022 [ECF No. 24].

To date, no objections have

been filed.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made.

28 U.S.C. § 636(b)(1)(C).

without

explanation,

any

Otherwise, “the Court may adopt,
of

the

magistrate

recommendations” to which there are no objections.

judge’s

Dellarcirprete

v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
2

Courts will

Case 2:22-cv-00010-TSK-MJA Document 26 Filed 01/17/23 Page 3 of 3 PageID #: 133
NEELEY V. SYNCHRONY BANK

2:22cv110

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 22],
GRANTING DEFENDANT’S MOTION TO DISMISS [ECF NO. 7],
DENYING PLAINTIFF’S MOTION TO REMAND [ECF NO. 13],
AND DISMISSING ACTION WITHOUT PREJUDICE
uphold portions of a recommendation 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

no

party

has

objected,

obligation to conduct a de novo review.

the

Court

is

under

no

Accordingly, the Court

reviewed the R&R for clear error. Finding none, the Court:
1. ADOPTS the R&R [ECF No. 22];
2. GRANTS Synchrony’s motion to dismiss for failure to state a
claim [ECF No. 7];
3. DENIES Neeley’s motion to remand [ECF No. 13]; and
4. DISMISSES this action WITHOUT PREJUDICE.
It is so ORDERED.
The Clerk is directed to strike this case from the Court’s
active docket and transmit copies of this Order to counsel of
record via electronic means and the pro se Plaintiff via certified
mail, return receipt requested, at the last known address as shown
on the docket.
DATED: January 17, 2023

____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

3