United States District Court, D. South Carolina, Florence Division
C. Coggins, Jr. United States District Judge.
matter is before the Court on Defendant's partial motion
to dismiss and Plaintiff's motions for entry of default
and to strike. ECF Nos. 11, 19, 22. Plaintiff filed a
response in opposition to the motion to dismiss. ECF No. 15.
Defendant filed a response in opposition to Plaintiff's
motions, after being so directed by the Magistrate Judge, and
Plaintiff filed a reply. ECF Nos. 30, 34, 36. In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2), (D.S.C.), this matter was referred to United
States Magistrate Judge Kaymani D. West for pre-trial
proceedings and a Report and Recommendation
(“Report”). On April 10, 2019, the Magistrate
Judge issued a Report recommending that Plaintiff motion for
entry of default be denied, Plaintiff's motion to strike
be denied as moot, and Defendant's partial motion to
dismiss be granted. ECF No. 38. Plaintiff filed objections to
the Report. ECF No. 40.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report only for clear error
in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).
objects to portions of the Magistrate Judge's Report.
With respect to his motion for entry of default, Plaintiff
contends that Defendant has not presented a meritorious
defense and that he has been prejudiced by Defendants'
actions. Plaintiff also states that his motion to strike
Defendant's motion to dismiss should be granted.
Plaintiff does not object the Magistrate Judge's analysis
of the merits of Defendant's motion to dismiss.
does not dispute that its motion to dismiss was filed one day
after the deadline to file a responsive pleading expired;
however, default has not yet been entered in this case.
Accordingly, the Court finds it appropriate to enlarge the
time to file a responsive pleading by one day. Thus,
Plaintiff's motion for entry of default is denied and his
motion to strike is denied as moot.
even if default had been entered, the Court finds good cause
would exist to excuse the default. See Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616
F.3d 413, 417 (4th Cir. 2010) (“We have repeatedly
expressed a strong preference that, as a general matter,
defaults be avoided and that claims and defenses be disposed
of on their merits.”) (citations omitted). In deciding
whether good cause exists to excuse the entry of default, the
Court should consider “whether the moving party has a
meritorious defense, whether it acts with reasonable
promptness, the personal responsibility of the defaulting
party, whether there is a history of dilatory action, and the
availability of sanctions less drastic.” Colleton
Preparatory Acad., 616 F.3d at 417 (internal citations
and quotation marks omitted). “Generally[, ] a default
should be set aside where the moving party acts with
reasonable promptness and alleges a meritorious
defense.” Consol. Masonry & Fireproofing, Inc.
v. Wagman Const. Corp., 383 F.2d 249, 251 (4th Cir.
as noted by the Magistrate Judge, the responsive pleading was
filed one day late; accordingly, the Court finds Defendant
acted with reasonable promptness. Further, upon de novo
review of the record, applicable law, and Report of the
Magistrate Judge, the Court agrees with the Report that
Defendant has set out a potentially meritorious defense and
that Plaintiff has not demonstrated that he will suffer undue
prejudice based on this delay in filing.
to Defendant's motion, the Magistrate Judge recommended
granting Defendant's motion to dismiss Plaintiff's
fifth cause of action. As explained by the Magistrate Judge,
the economic loss rule does not create a cause of action.
Therefore, the Court agrees that Defendant's motion
should be granted.
the Court agrees with the recommendations of the Magistrate
Judge, the undersigned notes that Defendant did file its
responsive pleading one day late and had to be directed by
the Magistrate Judge to respond to Plaintiff's motions.
The Court reminds Defendant to be cognizant of deadlines
going forward in this action and recommends that it should
not rely on orders from this Court to prompt its filings.
foregoing reasons the Court adopts the recommendation of the
Magistrate Judge. Defendant's partial motion to dismiss
 is GRANTED. Plaintiff's motion for
entry of default  is DENIED ...