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Moorer v. Luthi

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

September 19, 2017

Curtis Glenn Moorer, Plaintiff,
v.
Mr. Luthi, New Carolina Mortgage, Christopher Edwards, and Moss & Associates, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge.

         This matter is before the Court on Plaintiff's untimely objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Kevin F. McDonald.[1] See R & R [ECF No. 16]. The Magistrate Judge recommends that the Court refer this matter to the Bankruptcy Court for the District of South Carolina.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it 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).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which specific written objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of timely filed specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983). Failure to file timely objections constitutes a waiver of de novo review and a party's right to appeal this Court's order. 28 U.S.C. § 636(b)(1); see Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Carr v. Hutto, 737 F.2d 433, 434 (4th Cir. 1984).

         Objections to an R & R must be filed within fourteen days of the date of service. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). When service of the R & R is made by mail (as in this case), the objecting party has three additional days to file objections. See Fed. R. Civ. P. 6(d). A paper is filed when it is delivered to the Clerk (or a judge), not when it is mailed.[2] See Fed. R. Civ. P. 5(d)(2).

         Discussion

         The Magistrate Judge entered the R & R on August 22, 2017, and the Clerk mailed Plaintiff a copy of the R & R that same day. See ECF Nos. 16 & 18. Plaintiff's objections were therefore due by September 8, 2017.[3] Id. However, the Clerk did not receive Plaintiff's objections until September 13, 2017. See ECF Nos. 20 & 20-1 (timestamps by the Clerk). Thus, Plaintiff's objections are untimely, and the Court need not consider them.[4]

         “[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, 416 F.3d at 315 (emphasis added) (quoting Fed.R.Civ.P. 72 advisory committee's note). The Court has reviewed Plaintiff's complaint and the Magistrate Judge's R & R evaluating Plaintiff's allegations. Having done so, the Court discerns no clear error and therefore will adopt and incorporate the R & R by reference.

         Conclusion

         For the foregoing reasons, the Court finds no clear error and therefore adopts and incorporates by reference the R & R [ECF No. 16] of the Magistrate Judge. Accordingly, the Court REFERS this case to the Bankruptcy Court for the District of South Carolina.

         IT IS SO ORDERED.

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