United States District Court, D. South Carolina, Aiken Division
Mary C. Randall, Plaintiff,
Richard M. Tierney, C.P.C.U., ACI Branch Manager; and Michael C. Pedersen, Amica Adjuster Defendants.
ORDER AND OPINION
Michelle Childs United States District Judge.
Mary C. Randall (“Plaintiff”) filed a Pro
se insurance claim (“amended Complaint”)
against Amica Insurance Company (“Amica”) and its
employees Richard M. Tierney and Michael C. Pederson
(collectively “Defendants”) (ECF No. 35).
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
the matter was referred to United States Magistrate Judge
Shiva V. Hodges for pre-trial handling. On January 11, 2017,
the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending the court to grant
Defendants' motion to dismiss (ECF No. 50) and dismiss
Plaintiff's amended Complaint (ECF No. 35) with
prejudice. (ECF No. 60.) This review considers
Plaintiff's Objection to Report and Recommendation
(“Objections”), filed on January 23, 2017. (ECF
No. 64.) For the reasons set forth herein, the court
ACCEPTS the Magistrate Judge's Report.
The court thereby DISMISSES Plaintiff's
amended Complaint (ECF No. 35) with prejudice and
GRANTS Defendants' motion to dismiss.
(ECF No. 50.)
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
facts viewed in the light most favorable to Plaintiff are
discussed in the Report. (See ECF No. 60.) The court
concludes, upon its own careful review of the record, that
the Magistrate Judge's factual summation is accurate and
incorporates it by reference. The court will only recite
herein facts pertinent to the analysis of Plaintiff's
January 27, 2016, Plaintiff filed a Complaint against
Defendants. (ECF No. 1). On February 25, 2016, Defendants
filed a motion to dismiss Plaintiff's Complaint. (ECF No.
22). On April 18, 2016, the Magistrate Judge issued a Report
and Recommendation (“Report”) recommending the
court to grant Defendants' motion to dismiss, but that
Plaintiff be allowed 15 days from the date of the order to
file an amended Complaint. (ECF No. 32.) On May 6, 2016,
Plaintiff filed an amended Complaint. On August 3, 2016, the
court adopted the Magistrate Judge's Report and dismissed
Plaintiff's original Complaint without prejudice, but
finding Plaintiff's amended Complaint as timely filed.
(ECF No. 44). On September 28, 2016, Defendants filed a
motion to dismiss Plaintiff's amended Complaint. (ECF No.
case, the Magistrate Judge recommended the court to grant
Defendants' motion to dismiss and dismiss Plaintiff's
amended Complaint with prejudice. (ECF No. 60.) The
Magistrate Judge determined that Plaintiff failed to plead
any breach of contract claim against Defendants and had no
reasonable basis to support her bad faith claim against Amica
concerning its settlement decision on personal injury and
property damage claims against Plaintiff. (Id. at
6-7.) The Magistrate Judge further determined that Plaintiff
failed to plead allegations of her fraud claim with
particularity against Defendants. (Id. at 9.)
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court. The recommendation has no
presumptive weight. The responsibility to make a final
determination remains with this court. See Matthews 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 to which specific objections are made,
and the court may accept, reject, or modify, in whole or in
part, the magistrate judge's recommendation, or recommit
the matter with instructions. See 28 U.S.C. §
to a Report and Recommendation must specifically identify
portions of the Report and the basis for those objections.
Fed.R.Civ.P. 72(b). “[I]n the absence of a timely filed
objection, a district court need not conduct a de
novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'” Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Failure to timely file specific
written objections to a Report will result in a waiver of the
right to appeal from an Order from the court based upon the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766
F.2d 841 (4th Cir. 1985); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to
properly object because the objections lack the requisite
specificity, then de novo review by the court is not
Plaintiff is a pro se litigant, the court is
required to liberally construe his arguments. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court
addresses those arguments that, under the mandated liberal
construction, it has reasonably found to state a claim.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
Objections lack the requisite specificity required by Federal
Rule of Civil Procedure 72(b). Since Plaintiff failed to
properly object to the Report with specificity, the court
does not need to conduct a de novo review and
instead must “only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond, 416 F.3d at 315. The
court does not find clear error and accepts the Report by the
Objections, Plaintiff merely asserts that “I clearly
stated that AMICA fraudulently found me liable for an
accident where I was hit on the side and my brakes were
on.” (ECF No. 64 at 2.) Plaintiff fails to challenge
the Magistrate Judge's conclusion that she did not allege
any facts that constituted a breach of contract and/or bad
faith claim against Amica concerning its settlement decision
on the personal injury and property damage ...