United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending summary judgment for
Plaintiff, and on Defendant's motion to disqualify
Magistrate Judge Baker from this case. For the reasons set
forth below, the Court denies the motion to disqualify
Magistrate Judge Baker, adopts the Report and Recommendation,
and grants summary judgment for Plaintiff
was disbursed $62, 408.18 in May 1999 on a note issued under
the William D. Ford Federal Direct Loan Program and signed by
Defendant on April 20, 1999. Following demand of payment,
Defendant defaulted on March 25, 2005. On May 14, 2015,
Plaintiff filed the present suit on a note. On December 21,
2015, Plaintiff filed an affidavit stating that Defendant
owes $106, 751.79 in principal, interest, and costs (of
$67.49) as of that date, and that interest continues to
accrue at the rate of $4.77 per diem. Plaintiff also seeks
costs and attorney's fees.
Report and Recommendation of the Magistrate Judge
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts
to introduce new evidence after the magistrate judge has
acted are disfavored, " though the district court may
allow it "when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
Motion to Disqualify Magistrate Judge Baker
moves to disqualify Magistrate Judge Baker from this case
because she formerly worked as an Assistant United States
Attorney ("AUSA") and in that role represented the
United States. Magistrate Judge Baker would be
disqualified from involvement in this proceeding due to her
previous government employment only if she "participated
as counsel, adviser or material witness concerning the
proceeding or expressed an opinion concerning the merits of
the particular case in controversy." 28 U.S.C. §
455(b)(3). "As applied to judges who were formerly
AUSAs, § 455(b)(3) requires some level of actual
participation in a case to trigger disqualification."
United States V. Ruzzano,247 F.3d 688, 695 (7th
Cir. 2001). Defendant provides several pages of materials to
establish the undisputed fact that Magistrate Judge Baker
once worked as an AUSA, but he does not allege any actual