Savoy v. Burns et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 6/18/2018. Copy sent certified mail, return receipt to pro se Plaintiff; Copy of paperless order 11 sent CMRR.(tlg) (Additional attachment(s) added on 6/18/2018: # 1 Certified Mail Return Receipt) (tlg).

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

GREGORY SCOTT SAVOY,
Plaintiff,

v.

CIVIL ACTION NO.: 3:18-CV-86
(GROH)

CRAIG M. BURNS, Tax Commissioner,
Virginia Department of Taxation, PETER
FRANCHOT, Maryland Comptroller, Office
of the Comptroller, and DALE W. STEAGER,
Tax Commissioner, West Virginia State
Department of Taxation,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
Currently pending before the Court is a Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Robert W. Trumble. ECF No. 4. Pursuant to
this Court’s Local Rules and 28 U.S.C. § 636(b)(1)(b), this action was referred to
Magistrate Judge Trumble for submission of an R&R. On June 1, 2018, Magistrate Judge
Trumble issued his R&R, recommending that this Court dismiss the action without
prejudice and deny the concurrent application to proceed in forma pauperis.
I. Background
On May 29, 2018, the Plaintiff filed an Ex Parte Emergency Application Instanter
for Stay of Proceedings to Enforce a Judgment Pending the Filing of a Motion to Grant
Relief to be Concurrent with an Application to Proceed Informa Pauperis. ECF No. 1. In

his motion, the Plaintiff requests that the Court stay the collection of tax judgments against
him in Virginia and Maryland.

ECF No. 1 at 13-14.

Magistrate Judge Trumble

recommended that the motion be denied and the action be dismissed without prejudice.
I. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a plaintiff’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, objections to Magistrate Judge Trumble’s R&R were due within fourteen days
after being served with a copy of the same. The R&R was sent to the Plaintiff by certified
mail, return receipt requested, on June 1, 2018. ECF No. 4. The Plaintiff filed objections
on June 11, 2018. ECF No. 5. Accordingly, this Court will review the portions of the R&R
to which the Plaintiff objects de novo.
III. Discussion
While the R&R analyzes the motion as one for injunctive relief, the Plaintiff’s
primary objection to the R&R is that his motion is one for relief under Federal Rule of Civil
Procedure Rule 62(b)(4). Accordingly, this Court will accept Magistrate Judge Trumble’s

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R&R in so far as it reviews the motion as a motion for injunctive relief and will undertake
de novo review of the Plaintiff’s motion as a Rule 62(b)(4) Motion.
Rule 62(b)(4) of the Federal Rules of Civil Procedure permits the court to stay the
execution of any judgment pending the disposition of a motion under Rule 60. FED. R.
CIV. P. 62(b)(4). Rule 60 states that a court may relieve a party from a final judgment for
a variety of reasons including, “any other reason that justifies relief.” FED. R. CIV. P. 60(b).
Thus, in sum, a motion under Rule 62(b)(4) allows the court to stay a judgment pending
the disposition of a motion for relief from the final judgment, order, or proceeding.
In the instant case, the Plaintiff has not filed a motion for relief from a judgment or
an order under Rule 60. Accordingly, the motion to stay proceedings under Rule 62(b)(4)
is premature. Moreover, because this Court did not render the initial judgment from which
the Plaintiff appeals, this action is an independent action not governed by Rule 60.
Therefore, whether the motion is analyzed as a motion for injunctive relief—as done in
the R&R without objection—or as a motion under Rule 62(b)(4)—as done in this Order—
the motion does not provide a ground for relief.
V. Conclusion
Therefore, upon review and finding no error, the Court ORDERS Magistrate Judge
Trumble’s Report and Recommendation [ECF No. 4] be ADOPTED for the reasons more
fully stated therein. The Plaintiff’s objections [ECF No. 5] are OVERRULED. Accordingly,
the Court hereby ORDERS that the Plaintiff’s Application [ECF No. 1] be DENIED and
that this action be DISMISSED WITHOUT PREJUDICE.

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The Court DIRECTS the Clerk to strike this case from the active docket and
transmit a copy of this Order to the pro se Plaintiff by certified mail, return receipt
requested.
DATED: June 18, 2018

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