United States District Court, D. South Carolina, Spartanburg Division
Timothy M. Cain United States District Judge
Wanda Gavin (“Gavin”), proceeding pro se, filed
this action alleging claims pursuant to the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et. seq., and the South Carolina Consumer
Protection Code (“SCCPC”), SC Code Ann. §
37-5-108. Defendants Hutchens Law Firm, John S. Kay, John B.
Kelchner, and Ashley Z. Stanley (collectively the “HLF
Defendants”) filed a motion to dismiss. (ECF No. 15).
Defendants Bank of America N.A. (“BANA”) and U.S.
Bank Trust N.A. (“U.S. Bank Trust”) (collectively
the “Bank Defendants”) filed a separate motion to
dismiss (ECF No. 26). Plaintiff filed responses to both
motions (ECF Nos. 30 and 31), and HLF Defendants and the Bank
Defendants filed replies (ECF Nos. 34 and 36). Plaintiff also
filed a motion to amend the Complaint. (ECF No. 33). HLF
Defendants and the Bank Defendants filed responses to this
motion (ECF Nos. 35 and 37), and Plaintiffs filed replies
(ECF Nos. 39 and 40). In accordance with 28 U.S.C. §
636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial
proceedings were referred to a magistrate judge.
December 14, 2016, the Magistrate Judge filed a Report and
Recommendation (“Report”) recommending that the
court (1) grant the motion to dismiss filed by the HLF
Defendants (ECF No. 15); (2) grant the motion to dismiss
filed by the Bank Defendants (ECF No. 26); and (3) deny
Plaintiff's motion to amend the complaint (ECF No. 33) to
the extent Plaintiff seeks to amend her FDCPA Claim and grant
the motion to the extent Plaintiff seeks to dismiss her SCCPC
claim and to add two Telephone Consumer Protection Act
(“TCPA”) claims against BANA. On December 29,
2016, Plaintiff timely filed objections to the Report (ECF
No. 45). This matter is now ripe for review.
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, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
determination of those portions of the Report 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 with instructions.
28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
15(a) provides in part that leave to amend “shall be
freely given when justice so requires.” Fed.R.Civ.P.
15(a). “[L]eave to amend a pleading should be denied
only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving
party, or the amendment would be futile.” Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th
Cir. 2013) (internal citation and quotation marks omitted).
The court should deny leave to amend due to futility when the
proposed amendment is on its face insufficient to survive a
Rule 12(b)(6) motion to dismiss. See Perkins v. United
States, 55 F.3d 910, 917 (4th Cir. 1995). See United
States ex. rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008)(holding motion
to amend pleadings that may be futile is treated as if the
opposing party has moved to dismiss). For a motion to dismiss
for failure to state a claim, the well-pled allegations in
the complaint are accepted as true. See Brockington v.
Boykins, 637 F.3d 503, 505 (4th Cir. 2011).
noted above, in her Report, the Magistrate Judge recommends
that the court (1) grant the motion to dismiss filed by the
HLF Defendants (ECF No. 15); (2) grant the motion to dismiss
filed by the Bank Defendants (ECF No. 26); and (3) deny
Plaintiff's motion to amend the complaint (ECF No. 33)
to the extent Plaintiff seeks to amend her FDCPA Claim
and grant the motion to the extent Plaintiff seeks to dismiss
her SCCPC claim and to add two Telephone Consumer Protection
Act (“TCPA”) claims against BANA. (Report at
13) (emphasis added).
Objections, Gavin states that she withdraws her claims under
the FDCPA and the SCCPC, but she objects to dismissal of her
claims under the TCPA. (Objections at 1). The Magistrate
Judge, however, recommends that Gavin be allowed to amend her
complaint to add claims under the TCPA. (Report at 13)
(stating “Plaintiff's motion to amend her Complaint
to add two TCPA claims against BANA should be
granted.”). It appears that Gavin actually is in
agreement with the recommendations of the Magistrate Judge.
on the foregoing, and after a thorough review of the Report
and the record in this case pursuant to the standards set
forth above, the court adopts the Report (ECF No. 42).
Accordingly, it is, therefore, ORDERED that the motion to
dismiss filed by the HLF Defendants (ECF No.15) is GRANTED;
the motion to dismiss filed by Defendants BANA and U.S. Bank
Trust (ECF No. 26) is GRANTED; Plaintiff's motion to
amend the Complaint (ECF No. 33) is DENIED to the extent
Plaintiff seeks to amend her FDCPA claim and GRANTED to the
extent Plaintiff seeks to dismiss her SCCPC claim and to add
two TCPA claims against BANA. Plaintiff is ORDERED to file an
Amended Complaint alleging only her claims under the TCPA
within 15 days of this order.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the ...