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Gray v. Zirfas

United States District Court, D. South Carolina, Florence Division

January 24, 2017

RODNEY L. GRAY, JR., Plaintiff,
v.
CAROLYN ZIRFAS, Defendant.

          ORDER

          R. Bryan Harwell United States District Judge.

         This matter is before the Court for review of Defendant's Motion to Dismiss Plaintiff's Complaint filed on August 1');">12, 201');">16. [ECF #22]. On November 22, 201');">16, Magistrate Judge Kaymani D. West issued her Report and Recommendation. [ECF #29]. These motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1');">1) and Local Civil Rule 73.02(B)(2)(e). The Magistrate Judge recommends that this Court grant the motion. On December 9, 201');">16, Plaintiff filed Objections to the Magistrate Judge's Report and Recommendation (“R&R”). [ECF #31');">1]. All parties have had the opportunity to extensively brief the issues raised in the motions, and this Court has thoroughly considered all pleadings filed in this case.[1');">1" name="FN1');">1" id="FN1');">1">1');">1]

         Factual Background and Procedural History

         On June 23, 201');">16, Plaintiff Rodney L. Gray, Jr. filed this action in the federal district court of South Carolina against Carolyn Zirfas. Plaintiff is a Nebraska resident, while Defendant is a South Carolina resident. The lawsuit arises from an automobile accident that occurred five years prior to the filing of the lawsuit in this Court on March 9, 201');">11');">1 in Omaha, Nebraska. [ECF #1');">1, p. 5]. Plaintiff contends that Defendant neglected to stop at a stop sign, thereby causing him personal injury and property damage in the amount of $1');">1 million dollars. [ECF #1');">1, p. 5]. A review of the record reflects that on March 6, 201');">15, nearly four years after the automobile accident, Plaintiff filed a lawsuit related to the same claim in the Douglas County Civil/Small Claims Court in Omaha, Nebraska, styled as Gray v. AAA Ins. Co., No. C1');">11');">15-4845 (the “Nebraska lawsuit”). The Nebraska lawsuit arises out of the same automobile accident and makes the same allegations against Defendant that are present in this Complaint. On May 28, 201');">15, that court dismissed the Nebraska lawsuit with prejudice against Defendant's insurer for failure to state a claim and without prejudice against this Defendant on January 1');">19, 201');">16 when Plaintiff failed to serve Defendant within a six month time period. [ECF #26-2; ECF #26-3]. On March 1');">18, 201');">16, Plaintiff appealed the dismissal of the Nebraska lawsuit, and the appeal is current pending in Nebraska. [ECF #22-1');">1, 3');">p. 3].

         On August 1');">12, 201');">16, Defendant filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 1');">12(b)(6). [ECF #22, p. 1');">1]. Defendant argues three grounds for dismissal: (1');">1) the Complaint fails to state a cause of action; (2) the claims are barred by the applicable statute of limitations; and (3) Plaintiff has a parallel proceeding pending in another court (the Nebraska lawsuit). [ECF #22, pp. 1');">1-2]. Plaintiff filed a response to the Motion to Dismiss, arguing that it is fair and equitable to deny the Motion to Dismiss because Defendant evaded service in the Nebraska lawsuit, while appearing in the bankruptcy courts of Nebraska. [ECF #26, p. 2');">p. 2].

         On November 22, 201');">16, Judge Kaymani D. West issued her Report and Recommendation (“R&R”) recommending that this Court grant the Motion to Dismiss because Plaintiff's Complaint is barred by the statute of limitations and equity does not toll the time period in this case. [ECF #29, p. 6]. On December 9, 201');">16, Plaintiff filed objections to the R&R. [ECF #31');">1]. The Court now issues the following Order.

         Standards of Review

         A. Review of the Magistrate Judge's Report & Recommendation

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 3 U.S. 261');">1');">423 U.S. 261');">1, 270-71');">1 (1');">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, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1');">1).

         The district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1');">1982). However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate's proposed findings and recommendations.” Id. In the absence of specific objections to the R&R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 1');">16 F.3d 31');">10');">41');">16 F.3d 31');">10, 31');">15 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 71');">18 F.2d 1');">198, 1');">199-200 (4th Cir. 1');">1983).

         B. Standard for Rule 1');">12(b)(6) Motion to Dismiss

         Defendant has moved to dismiss the claims brought by Plaintiff against them pursuant to Rule 1');">12(b)(6). Under the standard set forth in Bell Atlantic Corp. v. Twombly, 1');">127 S.Ct. 1');">1955');">1');">127 S.Ct. 1');">1955 (2007), a complaint must be dismissed pursuant to Rule 1');">12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Giarratano v. Johnson, 1');">1 F.3d 298');">521');">1 F.3d 298 (4th Cir. 2008), citing Twombly, 1');">127 S.Ct. at 1');">1974. The purpose of such a motion is to test the sufficiency of the facts alleged in a plaintiff's complaint. See Edwards v. City of Goldsboro, 1');">178 F.3d 231');">1');">1');">178 F.3d 231');">1, 243 (4th Cir. 1');">1999). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” While this standard “does not require ‘detailed factual allegations, ' . . . [a] pleading that offers ‘labels and conclusions, ' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 1');">129 S.Ct. 1');">1937');">1');">129 S.Ct. 1');">1937, 1');">1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 1');">129 S.Ct. at 1');">1949 (quoting Twombly, 550 U.S. at 557). Rather, to survive a Rule 1');">12(b)(6) motion to dismiss, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The United States Supreme Court recently stated that

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Iqbal, 1');">129 S.Ct. at 1');">1949 (quoting Twombly, 550 U.S. at 570). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. ...


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