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Bates v. Vandroff

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

April 23, 2019

Kenneth Ray Bates, Plaintiff,
v.
Sylvia Tawanda Vandroff, Trina Clarkson, Marolyn D. Vandroff, Elizabeth Kinder, Shardice Sharp, Brenda Robinson, Kylee Martin, Another Chance Publishing, ELI Solutions, LLC, and Another Chance to Bridge the Gap, Defendants.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE

         This matter is before the Court for review of two separate Reports and Recommendations (“R & Rs”) entered by United States Magistrate Judge Thomas E. Rogers, III.[1] See ECF Nos. 52 & 63. Plaintiff has filed objections to the second R & R. See ECF No. 70.

         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); Fed.R.Civ.P. 72(b).

         The 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).

         Discussion [2]

         Plaintiff 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.[3] The Magistrate Judge has entered two R & Rs, which the Court will address in turn.

         I. First R & R (ECF No. 52)

         In the 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).[4] 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).

         II. Second R & R (ECF No. 63)

         In the 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, [5] 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).[6] See ECF No. 63. Plaintiff specifically objects to the Magistrate Judge's second recommendation regarding the Rule 4(m) dismissal of the six defendants.[7][8] See ECF No. 70.

         Regarding 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).

         Regarding 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.

         In sum, 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 ...


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