United States District Court, D. South Carolina, Columbia Division
RICHARD LIVINGSTON, a/k/a Richard H. Livingston, Plaintiff/Counter-Defendant,
ROBERT SACKETT, personally, and as Personal Representative of the Estate of Phyllis Elaine Busby Livingston, Defendant/Counter-Plaintiff.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.
filed this diversity action pursuant to 28 U.S.C. § 1332
raising state law claims of promissory estoppel, breach of
fiduciary duty, and intentional infliction of emotional
distress against Defendant. Defendant asserted counterclaims
of conversion and breach of fiduciary duty against Plaintiff.
Plaintiff is proceeding pro se. The matter is before the
Court for review of the Report and Recommendation (Report) of
the United States Magistrate Judge suggesting Defendant's
motion for summary judgment be granted as to Plaintiff's
claims and Defendant's counterclaim for conversion, but
denied as to Defendant's counterclaim for breach of
fiduciary duty, which fails to state a claim. The Report was
made in accordance with 28 U.S.C. § 636 and Local Civil
Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this 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 (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. §
Magistrate Judge filed the Report on July 14, 2017, and the
Clerk of Court entered Plaintiff's objections to the
Report on August 3, 2017. The Court has carefully considered
the objections, but holds them to be without merit.
Therefore, it will enter judgment accordingly.
28 U.S.C. § 636(b)(1), a district court is required to
conduct a de novo review of those portions of the Magistrate
Judge's Report to which a specific objection has been
made. The Court need not conduct a de novo review, however,
“when a party makes general and conclusory objections
that do not direct the court to a specific error in the
[Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
As provided above, however, the Court need not-and will
not-address any of Plaintiff's arguments that fail to
point the Court to alleged specific errors the Magistrate
Judge made in the Report.
Plaintiff's objections, he notes the Magistrate Judge
ordered him to file redacted documents or else the unredacted
documents he previously filed would be stricken from the
record. Plaintiff states he “answered the
defendant's motion for summary judgment on June 6 with
properly redacted and filed exhibits.” ECF No. 84 at 1.
Further, Plaintiff argues the Magistrate Judge erred in
recommending there is no evidence to support Plaintiff's
claims because he presented at least “a scintilla of
evidence, ” which should enable him to withstand
summary judgment. Id. at 2. The Court is unable to
explained in detail by the Magistrate Judge, Plaintiff filed
exhibits to support his motion for summary judgment and serve
as a response to Defendant's motion for summary judgment.
See ECF Nos. 61, 64. Because these exhibits
contained sensitive personal information, the Magistrate
Judge instructed Plaintiff to file redacted documents and
warned him failure to comply with the order may result in the
exhibits being stricken from consideration and the record.
ECF No. 62. The Magistrate Judge further declined to consider
Plaintiff's untimely motion for summary judgment. ECF
Nos. 68, 71. In Plaintiff's objections, he asserts he
filed properly redacted documents in conjunction with his
response in opposition to Defendant's motion for summary
judgment on June 6, 2017. See ECF No. 74. A careful
review of the documents attached to Plaintiff's response
reveals them to be three separate cases from South Carolina
state courts Plaintiff relies on to support his claims.
Nowhere in Plaintiff's June 6, 2017, filing does the
Court find “properly redacted and filed exhibits,
” contrary to Plaintiff's assertion he provided the
same. Thus, the Court agrees with the Magistrate Judge that
Plaintiff has not attempted to properly refile the exhibits,
and the unredacted documents were properly stricken from the
Plaintiff's contention he provided at least “a
scintilla of evidence” sufficient to withstand summary
judgment is misguided, as he relies on an incorrect standard.
Rather than showing merely “a scintilla of evidence,
” Plaintiff must comply with the summary judgment
standard set forth in Rule 56 of the Federal Rules of Civil
Procedure, as discussed by the Magistrate Judge in the
Report, and which this Court incorporates by reference.
See ECF No. 78 at 6-7. Inasmuch as the Court agrees
with the Magistrate Judge that Plaintiff has failed to
present any admissible evidence to support his claims, the
Court will overrule Plaintiff's objections.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court adopts
the Report and incorporates it herein. Therefore, it is the
judgment of the Court Defendant's motion for summary
judgment is GRANTED IN PART as to
Plaintiff's claims and Defendant's counterclaim for
conversion. Defendant's motion is DENIED IN
PART as to Defendant's counterclaim for breach
of fiduciary duty, and that counterclaim is DISMISSED
WITH PREJUDICE for failure to state a claim.
IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within thirty days from the date hereof, pursuant to Rules 3