United States District Court, D. South Carolina, Orangeburg Division
matter is before the court upon review of the Magistrate
Judge's Report and Recommendation (“Report”)
(ECF No. 8), filed on April 10, 2019, recommending the
dismissal of Ruby Elaine Pinnex's
(“Plaintiff”) Complaint (ECF No. 1), without
service of process, for lack of subject-matter jurisdiction
under Fed.R.Civ.P. 12(h)(3). For the reasons stated herein,
the court ACCEPTS the Magistrate Judge's
Report (ECF No. 8), incorporating it herein, and
DISMISSES Plaintiff's Complaint (ECF No.
1) without prejudice and without issuance of service of
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 8.) As a brief background, Plaintiff,
proceeding pro se, filed her Complaint (ECF No. 1)
against Alesandro P. Dinello and Flagstar Bank, FSB
(collectively, “Defendants”) on March 6, 2019,
challenging her state mortgage foreclosure
action. (ECF No. 1) Plaintiff alleges that
Defendants, in handling the foreclosure, violated South
Carolina common law by engaging in trespass, bad faith, and
forgery. (Id. at 1-4.) Specifically, Plaintiff
claims that Defendants, through a forged instrument, have
been trespassing on her property since July 10, 2015, causing
“harm and injury to [her] property[.]”
(Id. at 2.) Plaintiff further alleges that she
provided Defendants with “fair-warning” to
“cease and desist immediately” the trespass of
her property, or she would “file a claim in federal
court, for the administrating [of her] property without any
rights[.]” (Id.) To support her claims,
Plaintiff attached, to her Complaint “seventy pages of
exhibits, records from the state foreclosure action, portions
of South Carolina's 1868 Constitution, and Amendments I
and VI through X of the United States Constitution.”
(ECF No. 8 at 2.) Consequently, Plaintiff seeks six hundred
fifty thousand dollars and zero cents ($650, 000.00) to
compensate “for the initial and continual trespass upon
[her] property[.]” (ECF No. 1 at 2.)
Magistrate Judge filed her Report on April 10, 2019. (ECF No.
8.) Within the Report, the Magistrate Judge declined to
address the merits of Plaintiff's Complaint.
(Id.) Rather, the Magistrate Judge recommends that
the court, acting sua sponte, dismiss
Plaintiff's Complaint under Fed.R.Civ.P. 12(h)(3).
(Id.) The Magistrate Judge reasons that Plaintiff
“failed to demonstrate complete diversity of
citizenship[, ]” failed to “plead a specific
violation of a federal statute or constitutional provision by
[D]efendants, ” and failed to demonstrate how
“any type of federal question jurisdiction [is]
otherwise evident from the fact of the pleading.”
(Id. at 5-6.) In addition to providing the court
with her recommendation, the Magistrate Judge advised both
parties of their rights to file specific objections to the
Report. (Id. at 8.) Neither Plaintiff nor Defendants
have objected to the Report.
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive
weight. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The responsibility to make a final determination
remains with this court. Id. at 271. The court is
charged with making a de novo determination of those
portions of the Report to which specific objections are made.
Diamond v. Colonial Life and Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
absence of objections to the Magistrate Judge's Report,
this court is not required to provide an explanation for
adopting the recommendation. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983). Rather, “in 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
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Furthermore, failure to file specific written objections to
the Report results in a party's waiver of the right to
appeal from the judgment of a Federal district court based
upon such recommendation. See 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
parties were apprised of their opportunity to file specific
objections to the Report on April 10, 2019. (ECF No. 8 at 8.)
Objections to the Report were due by April 24, 2019.
(Id.) Upon review of the record, neither Plaintiff
nor Defendants have filed any objections to the Report. In
the absence of specific objections to the Magistrate
Judge's Report, the court is not required to give any
explanation for adopting the Report and must only discern
whether the Report contains clear error. See Camby,
718 F.2d at 199; Diamond, 416 F.3d at 315. In the
instant case, the court has carefully examined the findings
of the Report and concludes that Plaintiff has failed to
establish that this court has subject-matter jurisdiction
over her claims. (See ECF No. 1.) Specifically,
Plaintiff has failed to demonstrate “complete diversity
of citizenship” (ECF No. 8 at 5) or how her claim
arises “under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. §§ 1331-1332.
Because specific objections were not filed by either party
and the Report does not contain clear error, the court adopts
the Report herein. See Camby, 718 F.2d at 199;
Diamond, 416 F.3d at 315.
thorough review of the Report and the record in this case,
the court finds the Report provides an accurate summary of
the facts and law and does not contain clear error.
Therefore, the court ACCEPTS the Magistrate
Judge's Report and Recommendation (ECF No. 8),
incorporating it herein, and DISMISSES
Plaintiffs Complaint (ECF No. 1) without prejudice and
without issuance of service of process.
IS SO ORDERED.