United States District Court, D. South Carolina, Greenville Division
Bryan Harwell United States District Judge.
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. 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.
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. §
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).
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. See Fed. R. Civ. P.
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. 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.
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.
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.
IS SO ORDERED.