United States District Court, D. South Carolina, Beaufort Division
Heather C. Hoffman, Plaintiff,
Charter Communications, Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending this action be
summarily dismissed, and Plaintiffs motion for leave to amend
the complaint. For the reasons set forth below, the Court
adopts the Report and Recommendation, denies the motion for
leave to amend, and dismisses this action without prejudice.
proceeding pro se, alleges Charter Communications,
also known as Time Warner Cable (acquired by Charter in May
2016) or Spectrum (Charter's branding for its residential
services), raised her rates for cable television service by
ten dollars and her rates for home internet service by five
dollars without providing thirty days' advance written
notice. She also alleges Charter provided a false reason for
the increase when it told her that she had been receiving a
promotional rate. Plaintiff filed the present action on April
26, 2018, asserting a claim under the South Carolina Unfair
Trade Practices Act ("SCUTPA") against Charter.
Although only a state-law cause of action is asserted,
Plaintiff asserts this Court's federal question
jurisdiction. The Magistrate Judge recommended summary
dismissal for lack of subject-matter jurisdiction on May 23,
2018. Plaintiff responded to the Report and Recommendation by
filing a motion for leave to amend the complaint to add
references to federal criminal statutes regarding mail fraud
and wire fraud and to purport to assert a fraud claim under
Rule 9 of the Federal Rules of Civil Procedure or Section
Five of the Federal Trade Commission Act (15 U.S.C. §
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews 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 and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "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, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
courts are courts of limited jurisdiction. In re Bulldog
Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). A
federal court may sua sponte determine if a valid
basis for jurisdiction exists, and must "dismiss the
action if no such ground appears." Id. at 352.
One basis for jurisdiction is federal question jurisdiction,
which is "original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States." 28 U.S.C. §1331. Generally,
"the presence or absence of [a] federal question is
governed by the 'well-pleaded complaint rule, ' which
provides that federal question jurisdiction exists only when
a federal question is presented on the face of the plaintiffs
properly pleaded complaint." Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). In limited
circumstances, federal jurisdiction may also exist over state
law claims that "implicate significant federal
issues" that are substantial and actually contested, if
federal jurisdiction would not upset the "balance
between federal and state judicial responsibilities."
Grable & Sons Metal Products, Inc. v. Darue Eng'g
& Mfg., 545 U.S. 308, 311-12 (2005). But a private
right of action "to enforce federal law must be created
by Congress." Alexander v. Sandoval, 532 U.S.
275, 286 (2001).
Court agrees with the Magistrate Judge that the complaint on
its face asserts a state-law SCUTPA claim, not a federal
claim. Generally, a suit arises under the law that creates
the cause of action. Am. Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916). Apparently
attempting to show this action implicates "significant
federal issues, " the complaint extensively references
certain federal regulations (47 C.F.R. §§ 76.1603
& 76.16019) governing cable television notice of service
and rate changes and information required on cable television
subscriber bills. But, as the Magistrate Judge notes, those
regulations provide no private cause of action and "if
the sole federal statute referenced by Plaintiff provides no
federal cause of action, then it can hardly be said that
Plaintiff is casting a federal law claim-any such claim would
be non-existent." McKnight v. Surgical Assoc, of
Myrtle Beach LLC, No. 4:1 l-cv-2782-RBH, 2011 WL
5869800, *5-6 (D.S.C. Nov. 18, 2011). The Court therefore
agrees with the Magistrate Judge's recommendation that
there is no federal subject-matter jurisdiction over this
leave to amend should be freely granted, it is not granted
where the proposed amended complaint is futile on its face.
See Johnson v. Oroweat Foods Co., 785 F.2d 503, 510
(4th Cir. 1986). Federal criminal statutes regarding mail
fraud or wire fraud do not provide a private cause of action
in federal court. Jones v. Luthi, 586 F.Supp.2d 595,
616 (D.S.C. 2008). Section Five of the Federal Trade
Commission Act does not provide a private cause of action.
Id. The Federal Rules of Civil Procedure do not
create substantive rights and cannot provide a federal cause
of action. See 28 U.S.C. § 2072. Plaintiffs
attempt to assert causes of action under these statutes or
rules is futile. The Court therefore denies the motion for
leave to amend the complaint.
foregoing reasons, the Court ADOPTS the
Report and Recommendation of the Magistrate Judge (Dkt. No.
19) as the Order of the Court, DENIES the
motion for leave to amend (Dkt. No. 22), and
DISMISSES WITHOUT PREJUDICE the complaint.