United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
matter is before the Court for review of two separate Reports
and Recommendations (“R & Rs”) entered by
United States Magistrate Judge Thomas E. Rogers,
See ECF Nos. 52 & 63. Plaintiff has filed
objections to the second R & R. See ECF No. 70.
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); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which 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 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).
Kenneth Ray Bates, proceeding pro se and in forma pauperis,
filed this breach of contract action against ten defendants
relating to the allegedly unauthorized publication and sale
of his book Law of Necessity vs. Criminal Mind of
Society. The Magistrate Judge has entered two R
& Rs, which the Court will address in turn.
First R & R (ECF No. 52)
first R & R, the Magistrate Judge recommends construing
Plaintiff's second motion for summary judgment (ECF No.
46) as a motion for default judgment and denying it, but also
entering a default against Defendant Marolyn D. Vandroff
pursuant to Fed.R.Civ.P. 55(a). See ECF No. 52.
Plaintiff has not filed objections to the first R & R,
and discerning no clear error, the Court will adopt it.
See generally Diamond & Camby, supra
(indicating a court need only review the record for clear
error in the absence of a specific objection and need not
explain its reasons for adopting an R & R).
Second R & R (ECF No. 63)
second R & R, the Magistrate Judge recommends (1) denying
Plaintiff's motion for default judgment (ECF No. 57)
because he has not presented evidence supporting an award of
$232, 390 in damages,  and (2) dismissing six
defendants-Elizabeth Kinder, Brenda Robinson, Trina
Clarkson, Shardice Sharp, Kylee Martin, and Another Chance
Publishing-without prejudice for failure to timely
serve pursuant to Fed.R.Civ.P. 4(m). See ECF No. 63.
Plaintiff specifically objects to the Magistrate Judge's
second recommendation regarding the Rule 4(m) dismissal of
the six defendants. See ECF No. 70.
Defendants Elizabeth Kinder, Brenda
Robinson, and Another Chance
Publishing, the Magistrate Judge correctly observes
that Plaintiff failed to provide properly completed service
documents for these three defendants despite the Magistrate
Judge's prior order giving him twenty-one days to do so.
See ECF No. 53 (order dated Jan. 29, 2019).
Defendants Trina Clarkson, Shardice
Sharp, and Kylee Martin, the
Magistrate Judge notes that Plaintiff has provided service
documents for these three defendants listing the following
address for service: “Sylvia Tawanda Vandroff
6914 E. Highway 76 Mullins, SC 29574-601.” See
ECF No. 58 (emphasis added) (court-only entry containing
Plaintiff's proposed service documents/Forms USM-285).
Similarly, in previous service documents, Plaintiff had
listed “C/O Marolyn D. Vandrof, 6914 E.
Highway 76, Mullins, SC 29574-601.” See ECF
Nos. 13 & 25-1 (emphasis added) (court-only entries
containing Plaintiff's proposed service documents/Forms
USM-285). However, as the Magistrate Judge explains,
Plaintiff has not shown that Sylvia Tawanda Vandroff or
Marolyn Vandroff (who are other defendants in this action)
are authorized to accept service on behalf of the
individuals Trina Clarkson, Shardice Sharp, or Kylee
Martin. See Fed. R. Civ. P. 4(e) (governing service
of individuals within a U.S. judicial district). Thus, the
address provided in Plaintiff's proposed service
documents does not allow the U.S. deputy marshal to
properly effectuate service on Trina Clarkson,
Shardice Sharp, or Kylee Martin.
Plaintiff (1) has failed to provide properly completed
service documents for Defendants Elizabeth
Kinder, Brenda Robinson,
and Another Chance Publishing and (2) has
not established that Defendants Trina
Clarkson, Shardice Sharp, and
Kylee Martin-who are individuals-can be
served through other persons (such as Defendants Sylvia
Tawanda Vandroff or Marolyn Vandroff). Accordingly, the Court