United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge.
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).
Magistrate Judge assigned to this action 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.
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.
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).
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
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.
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
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
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 ...