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 that this action be
summarily dismissed without prejudice and without service of
process. For the reasons set forth below, the Court adopts in
part and declines to adopt in part the Report and
Recommendation, and dismisses this action with prejudice and
without service of process.
Insun Kim alleges Defendant Progressive Northern Insurance
Company ("Progressive") failed to pay damages
resulting from an automobile accident on September 7, 2014.
Plaintiff alleges she suffered personal injuries because of
the actions of another driver whom Progressive insured, yet
Progressive refused to settle her claims. Plaintiff
previously brought this same claim in the Charleston County
Court of Common Pleas, which granted Progressive's motion
to dismiss on July 14, 2016. Kim v. Progressive N, Ins.
Co., 2016-CP-100674 (S.C.C.P. July 14, 2016) (judgment
filed the following day). Plaintiff filed the present action
the next morning, asserting claims for breach of contract,
bad faith refusal to pay benefits under an insurance policy,
negligence, and gross negligence. (Dkt. No. 1.) On August 19,
2016, the Court propounded special interrogatories regarding
jurisdiction to Plaintiff, which were answered on August 24,
2016. (Dkt. Nos. 9-1, 11.) On September 6, 2016, the
Magistrate Judge recommended summary dismissal. On September
12, 2016, Plaintiff objected to the Report and
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge, " 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
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), aff'd, 540
U.S. 614 (2004), "[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)
reviewing these pleadings, the Court is mindful of Plaintiff
s pro se status. This Court is charged with
liberally construing the pleadings of a pro se
litigant. See, e.g., De'Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal
construction does not mean, however, that the Court can
ignore a plaintiffs clear failure to allege facts that set
forth a cognizable claim, or that a court must assume the
existence of a genuine issue of material fact where none
exists. See United States v. Wilson, 699 F.3d 789,
797 (4th Cir. 2012).
filed this action the day after the state court dismissed
these same claims. The Court therefore finds that Plaintiff
filed this action as an attempt to obtain a different result
than she obtained in state court. As the Magistrate Judge
noted, this action is precluded by resjudiciata, see
Briggs v. Newberry Cty. Sch. Dist., 838 F.Supp. 232, 235
(D.S.C. 1992), and so summary dismissal is appropriate. (Dkt.
No. 17 at 4 n.3.) However, application of res
judiciata is an adjudication on the merits, so the
dismissal must be with prejudice. See Walls v. Wells
Fargo Bank, N.A., 557 F.App'x 231, 233 (4th Cir.
Magistrate Judge also recommends dismissal for lack of
subject-matter jurisdiction. There is, without question, no
federal question jurisdiction here-Plaintiffs claims are all
state law contract or tort claims. (See Dkt. No. 1.)
The Magistrate Judge determined that there is no diversity
jurisdiction because Plaintiffs complaint and answers to the
Court's special interrogatories assert that both
Plaintiff and Progressive are citizens of South Carolina.
(Dkt. Nos. 1 at 2, 11 at 1-2.) That would indeed seem to
indicate a lack of diversity jurisdiction. However, pro
se filings are liberally construed, see Beaudett v.
City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985),
and a pleading error does not divest this Court of subject
matter jurisdiction, see, e.g., Owen-Williams v. BB &
T Inv. Servs., Inc., 717 F.Supp.2d 1, 13 (D.D.C. 2010).
Although Plaintiff did assert that Progressive is a South
Carolina citizen in her answers to the Court's
interrogatories, she clearly did not understand the questions
being asked. (See, e.g., Dkt. No. 11-1 at 2
(Plaintiff claiming Defendant "is incorporated under the
laws of the State of United States of America and has its
principal place of business in the State of South
Carolina").) This Court is well aware that Progressive
Northern Insurance Company is a corporation organized under
Wisconsin law with its principal place of business in Ohio.
See, e.g., Complaint, Progressive N. Ins. Co. v.
Banks, 2:16-333-MBS-BM (D.S.C. Feb. 3, 2016)
(Progressive Northern Insurance pleading its state of
organization and the location of its principal place of
business near the time the present case was filed). It would
be improper for the Court sua sponte to dismiss for
lack of jurisdiction when it is aware of noticeable facts
establishing jurisdiction. Because complete diversity exists
and the amount requested exceeds $75, 000, diversity
jurisdiction is present in this case.
foregoing reasons, the Court ADOPTS pages 1-3 and the first
12 lines of text on page 4 (including footnote 3) of the
Report and Recommendation, and DECLINES TO ADOPT the final 3
lines of text on page 4, page 5, and page 6 of the Report and