United States District Court, D. South Carolina, Florence Division
Christine Samuel, as Natural Parent and Guardian of CSD, Plaintiff,
James H. Dickey and James H. Dickey Law Firm, Defendants.
Terry L. Wooten Chief United States District Judge
This matter comes before the Court for consideration of the Report and Recommendation (“R&R”) filed by United States Magistrate Judge Thomas E. Rogers, III, on February 17, 2016. (ECF No. 59.) The Magistrate Judge recommends denying Defendant James H. Dickey’s (“Dickey”) motion to set aside a default judgment. For the reasons set forth below, the R&R is hereby accepted.
Plaintiff Christine Samuel filed this action on behalf of her minor daughter asserting legal malpractice and breach of fiduciary duty claims against Defendants James H. Dickey and the James H. Dickey Law Firm. (ECF No. 1.) Plaintiff’s Complaint alleges she engaged Dickey in 1997 to handle a medical malpractice claim (the “Underlying Action”) against her obstetrician, Dr. Brown, who allegedly injured Plaintiff’s daughter at birth by improperly using a vacuum extraction device, causing the daughter to have brain damage and seizures. (Id. ¶¶ 9-15.) On February 4, 2000, Dickey filed a medical malpractice lawsuit in state court against Dr. Brown and his practice, and the defendants moved to dismiss that action. (Id. ¶¶ 16-17.) After requesting several continuances, Dickey failed to appear at multiple hearings scheduled for the motion to dismiss. (Id. ¶¶ 18-22.) Additionally, Dickey failed to comply with a court order directing him to respond to Dr. Brown’s discovery requests. (Id. ¶¶ 21-23.) On December 18, 2000, Dr. Brown filed a motion for summary judgment. (Id. ¶ 25.) Again, Dickey failed to appear at the hearing scheduled on that motion. (Id. ¶ 26.) The court granted summary judgment and dismissed the Underlying Action with prejudice based on Dickey’s failure to prosecute. (Id. ¶ 27.) Dickey moved for reconsideration, but failed to appear at the hearing scheduled on his motion without requesting a continuance or otherwise notifying the court that he would not attend. (Id. ¶ 28.) Thereafter, Dickey filed a notice of appeal and a petition of certiorari with the South Carolina Supreme Court. (Id. ¶ 28.) His request for certiorari was denied. (Id)
Throughout this process, Dickey failed to notify Plaintiff why the Underlying Action had been dismissed. (Id. ¶¶ 29, 31.) Plaintiff did not learn of the true disposition of the Underlying Action until she was contacted by the South Carolina Office of Disciplinary Counsel in 2010 as part of an investigation into Dickey’s law practice. (Id. ¶ 30.) Dickey was suspended from the practice of law in 2011. (Id. ¶ 31.)
Plaintiff filed the instant lawsuit on July 9, 2012, but was unable to effect service on Dickey after making several diligent attempts to do so. (See ECF No. 59, pp. 1-2.) In preparation to serve Dickey, counsel for Plaintiff searched the South Carolina Bar Organization’s Member Directory for his current address, and the address listed was for an office in Atlanta, Georgia. (Revised Jophlin Aff ¶ 5; ECF No. 28-1.) Counsel also spoke to members of South Carolina’s Office of Disciplinary Counsel and the South Carolina Department of Public Safety’s Office of General Counsel, who verified that they were unaware of any permanent residential address for Dickey within the state of South Carolina, and directed counsel to responses Dickey made to their office containing an Atlanta, Georgia address. (Id. ¶ 5 and Ex. D.) Counsel then checked the Georgia State Bar website, which listed an address for Dickey of 1745 Martin Luther King, Jr. Dr., NW, P.O. Box 2405, Atlanta, Georgia 30301. (Id.) Upon locating the Atlanta, Georgia address, counsel hired Atlanta Legal Services, Inc. in September 2012 to personally serve Dickey. Atlanta Legal Services made seven unsuccessful attempts to personally serve Dickey at his last known address of 1745 Martin Luther King Jr. Drive, Atlanta, Georgia. (Aff. of Due Diligence; ECF No. 11-1.) In October 2012, counsel for Plaintiff hired Tammie Gruhn who is a process server located in Atlanta to serve Dickey with the Summons and Complaint in this matter. After numerous attempts, telephone calls and research, Ms. Gruhn was also unable to serve Dickey. (Aff. of Due Diligence; ECF No. 11-2.)
On January 18, 2013, this Court granted leave to serve Dickey by publication. (ECF No. 12.) Dickey failed to answer or respond to publication by service, and the Court made an entry of default on September 30, 2013. (ECF No. 15.) On May 6, 2014, Plaintiff moved for a default judgment and the motion was referred to Magistrate Judge Rogers. After a February 10, 2015, hearing regarding the damages suffered by Plaintiff, the Magistrate Judge entered a first R&R recommending a judgment in the amount of one-million, fifty thousand dollars ($1, 050, 000) consisting of $350, 000 in actual damages and $700, 000 in punitive damages. (ECF Nos. 20 and 30.) On March 23, 2015, this Court accepted the first R&R and entered default judgment. (ECF Nos. 34 and 35.)
Several months later, on July 7, 2015, Dickey made his first appearance in this case by filing a pro se motion to set aside the final default judgment. (ECF No. 36.) Plaintiff filed a brief in opposition to this motion (ECF No. 38), and Dickey filed a brief in reply (ECF No. 40). The case was reassigned to Magistrate Judge Rogers and he held a second hearing on November 3, 2015. On February 17, 2016, the Magistrate Judge entered a second R&R which recommends denying Dickey’s motion because he failed to establish a ground for relief under Federal Rule of Civil Procedure 60(b). (ECF No. 59.)
This matter now comes before this Court for review of the second R&R. Dickey filed objections to the R&R on March 7, 2016, (ECF No. 61) and Plaintiff replied on March 25 (ECF No. 64). This matter is now ripe for decision.
In reviewing the R&R, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party may file written objections . . . . The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus ...