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Zimmerman v. Bank of America, N.A.

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

January 26, 2017

Willie Zimmerman, Plaintiff,
v.
Bank of America, N.A., Defendant.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge.

         I. Introduction

         The plaintiff, Willie Zimmerman, (“Zimmerman” or “Plaintiff”), proceeding pro se, originally filed this action for negligent misrepresentation and petition to reinstate a foreclosure sale, in the Richland County Court of Common Pleas. Defendant Bank of America, N.A. (“Defendant” or “BANA”), then removed the case to this court on July 7, 2016. (ECF No. 1). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case was referred to the Magistrate Judge. Thereafter, BANA filed a motion to dismiss for failure to state a claim. (ECF No. 5).

         The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”) and opines that Defendant's motion to dismiss should be granted with leave to file an amended complaint as to the claim for negligent misrepresentation. (ECF No. 16). The Report sets forth, in detail, the relevant facts and standards of law on this matter, and this Court incorporates those facts and standards without a recitation.

         Plaintiff was advised of his right to object to the Report, which was entered on the docket on December 1, 2016. Plaintiff filed objections to the Report on December 16, 2016, (ECF No. 19), and Defendant failed to file a reply within the time allotted. Thus, this matter is ripe for review.

         The court is charged with making a de novo determination of those portions of the Report to which specific objections are 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. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct a de novo review of the specific portions of the Magistrate Judge's Report to which an objection is made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report of the Magistrate, this Court is not required to give an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         II. Discussion

         Here, Plaintiff makes vague and generalized objections to the dismissal of his negligent misrepresentation claim. Although vague, three objections are discernable within Plaintiff's memorandum. However, each objection is without merit.

         Initially, Plaintiff objects to the application of Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff offers no support for this objection other than to say “[t]he complaint filed by Plaintiff contained detailed factual matter. The factual matter was accepted as true because it was from the record of Court Proceedings. The facts were the facts and the results of the factual situation lead to the misrepresentation by Defendant.” (ECF No. 19 p. 2). This objection fails to elucidate any error in the Report. Additionally, the Magistrate Judge correctly applied the standard required for a motion to dismiss for failure to state a claim by stating “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (ECF No. 16 p. 3) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Therefore, this objection is without merit.

         Secondly, Plaintiff objects to the finding that “the doctrine of collateral estoppel does not preclude the court to hear this action.” (ECF No. 19 p. 3). Initially, it is curious that Plaintiff would object to this conclusion because a finding to the contrary would completely prohibit Plaintiff's claim for negligent misrepresentation. However, the Magistrate Judge correctly concluded that the doctrine of collateral estoppel was not supported by the record because the Richland County Court's Order issued in the previous foreclosure case did not specifically address whether BANA ever made a false misrepresentation. (ECF No. 16 p. 2-3).

         Finally, Plaintiff appears to object to the finding that his complaint contains insufficient factual allegations to support a claim for negligent misrepresentation. In support of this contention, Plaintiff merely states that “he plead a case and stated a claim for which relief can be granted.” (ECF No. 19 p. 3). This conclusory statement is unpersuasive. The Magistrate Judge correctly stated the elements for negligent misrepresentation and indicated that Plaintiff failed to allege those elements within his complaint. (ECF No. 16 p. 4-5). Additionally, Plaintiff's complaint fails to identify any specific false representation made by BANA. Id. Accordingly, the Magistrate Judge correctly concluded that Plaintiff's claim for negligent misrepresentation should be dismissed for failure to state a claim.

         III. Conclusion

         After carefully reviewing the applicable laws, the record in this case, as well as the Report, this court finds the Magistrate Judge's recommendation fairly and accurately summarizes the facts and applies the correct principles of law. Accordingly, the Court ADOPTS the Report and Recommendation (ECF No. 16) and GRANTS Defendant's motion to dismiss. (ECF No. 5). Plaintiffs claims are dismissed without prejudice with leave to file an amended complaint within 30 days of entry of ...


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