United States District Court, D. South Carolina, Aiken Division
Mary C. Randall, Plaintiff,
Richard M. Tierney, CPCU, in his official capacity as Branch Manager; Michael C. Pederson, Amica Adjuster, Defendants.
AMENDED ORDER AND OPINION
Mary C. Randall (“Plaintiff”), proceeding pro se,
brings this action seeking relief from Amica Insurance
Company (“Amica”) employees Richard M. Tierney,
CPCU, and Michael C. Pederson (collectively
“Defendants”). This matter is before the court
for review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 32), filed
April 18, 2016, recommending that Defendants’ Motion to
Dismiss (ECF No. 22) be granted without prejudice if
Plaintiff filed an amended complaint within 15 days of the
instant Amended Order. For the reasons below, the court
ADOPTS the Magistrate Judge’s Report (ECF No. 32),
GRANTS Defendants’ Motion to Dismiss (ECF No. 22),
DISMISSES the Complaint (ECF No. 1) without prejudice, and
acknowledges Plaintiff’s Amended Complaint (ECF No. 35)
was timely filed on May 6, 2016, pursuant to the Magistrate
FACTUAL AND PROCEDURAL BACKGROUND
court concludes upon its own careful review of the record
that the factual and procedural summation in the Magistrate
Judge’s Report (ECF No. 32) is accurate, and the court
adopts this summary as its own. The court will only recite
herein facts pertinent to the analysis of Plaintiff’s
Objections (ECF No. 34).
January 27, 2016, Plaintiff filed an action that disagreed
with Defendants’ liability decision, which was not in
her favor, related to a traffic accident. (ECF No. 1 at 5-9.)
Plaintiff requested that the court review evidence that was
“never accepted into determining the outcome of who
caused the accident.” (ECF No. 1 at 10.) Additionally,
Plaintiff sought relief in the form of punitive damages for
the alleged bad faith on the part of Defendants, which
allegedly caused her emotional harm. (Id.) On
February 25, 2016, Defendants filed a Motion to Dismiss,
arguing that Plaintiff fails to state a claim upon which
relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). (ECF
No. 22.) Plaintiff filed timely objections to the Report (ECF
No. 32) on May 5, 2016, arguing that Defendants failed to
adequately represent her in the insurance claim. (ECF No.
Magistrate Judge’s Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive
weight. The responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court reviews de novo
only those portions of a magistrate judge’s report and
recommendation to which specific objections are filed, and
reviews those portions which are not objected to - including
those portions to which only “general and
conclusory” objections have been made - for clear
error. See Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may
accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
Furthermore, failure to file specific written objections to a
report and recommendation results in a party’s waiver
of the right to appeal from the judgment of the District
Court based upon such recommendation. 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
Magistrate Judge determined that Plaintiff’s Complaint
(ECF No. 1) did not specify any particular cause of action.
(ECF No. 32 at 5.) However, the Report did note that
Plaintiff intended to amend the Complaint (ECF No. 1) to
allege claims for breach of contract, bad faith, and fraud.
(ECF No. 32 at 5.)
the Magistrate Judge found that Plaintiff could not prevail
on a breach of contract claim because Plaintiff failed to
cite a specific clause in the insurance contract that
Defendants breached. (Id. at 5 (citing Southard
v. Pye, 2006-UP-309, 2006 WL 7286055 at *3 (S.C. Ct.
App. July 7, 2006)).) Next, the Magistrate Judge determined
that Plaintiff failed to allege facts showing that
Defendants’ decision to settle was unreasonable.
(Id. at 6 (citing Trotter v. State Farm Mut.
Auto. Ins. Co., 377 S.E.2d 343, 349 (S.C. Ct. App.
1988)).) Finally, the Magistrate Judge stated that while
Plaintiff alleged Defendants lied, no other elements of fraud
were established. (Id. at 7 (citing M.B. Kahn
Constr. Co. v. S.C. Nat’l Bank of Charleston, 271
S.E.2d 414, 415 (S.C. 1980); Harrison v. Westinghouse
Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)).)
objects to the Report (ECF No. 32) and provides this court
with a substantial amount of exhibits for review as
attachments. (ECF No. 34.) However, because Plaintiff’s
Objection (ECF No. 34) does not focus on the issues set forth
in the Report (ECF No. 32), this court is not obligated to
provide de novo review because Plaintiff fails to
articulate specific objections. Instead, Plaintiff restates
the arguments already considered by the Magistrate Judge.
Consequently, the court must “only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” Diamond, 416 F.3d
at 315 (quoting an advisory committee note in Fed.R.Civ.P.
72). Upon review of the record, no clear errors were found.
thorough review, the court ADOPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 32), GRANTS
Defendants’ Motion to Dismiss (ECF No. 22), DISMISSES
the Complaint (ECF No. 1) without prejudice, and acknowledges
Plaintiffs Amended Complaint (ECF No. 35) was timely filed on
May 6, 2016, pursuant to the Magistrate Judge’s Report
and Recommendation. The court ORDERS the Clerk to vacate the
judgment that was erroneously entered on August 2, 2016. ...