Opinion
5:21-CV-00394-M
10-05-2023
PIERO A. BUGONI, Plaintiff, v. BACKGROUND CHECKERS ET AL, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court on the amended application [D.E. 3] filed by Plaintiff Piero A. Bugoni (“plaintiff”) to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) (“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively. These matters were referred to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1). The court finds that plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the amended application to proceed in forma pauperis will be ALLOWED. However, based on the court's frivolity review and for the reasons set forth below, it is RECOMMENDED that plaintiff's complaint [D.E. 1-1] be DISMISSED.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's amended application and finds that he has adequately demonstrated his inability to prepay the required court costs. His amended application to proceed in forma pauperis [D.E. 3] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S ALLEGATIONS
Plaintiff filed a proposed complaint [D.E. 1-1] setting out allegations against the Professional Background Screeners Association (“PBSA”), as the alleged representative of, and together with, over 400 consumer reporting agencies (“Background Checkers”), “including but not limited to those parties named individually in [an exhibit attached to the complaint [D.E. 1-2]]” (the “Background Checker defendants”) (collectively with the PBSA, the “defendants”), which plaintiff seeks to join into a defendant class. Compl. [D.E. 1-1] at 2-3; see also id. at 4 (noting that plaintiff requested copies of his consumer file from 421 consumer reporting agencies). The primary claim asserted by plaintiff is that “using the Contact Information that [the Background Checker defendants] or the PBSA publishes for such, [plaintiff contacted each Background Checker defendant] and none of them provided a copy of [p]laintiff's Consumer file.” Id. at 2, 6.
All page citations herein are to the page numbers assigned by the court's CM/ECF electronic filing system.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se party's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se party's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Provided that a party's claims are not clearly baseless, the court must weigh the factual allegations in the party's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a party has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), report and recommendation adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here, the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on . . . the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
III. DEFENDANT CLASS CERTIFICATION
Plaintiff alleges that the PBSA may be sued “as Respondeat Superior its [sic] capacity to represent its members, communicate with them, and to direct their professional conduct. While the PBSA itself is a Professional Association, its constituency is Consumer Reporting Agencies, and as such it is representative of Defendant Class ‘Background Checkers' per FRCP Rule 23.” Compl. [D.E. 1-1] at 2.
The Federal Rules of Civil Procedure allow a member of a class to be sued as a representative party on behalf of all members only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.F.R.C.P. 23(a).
Plaintiff asserts there is a question of fact common to the alleged class, that is, whether “[p]laintiff did contact each and every Consumer Reporting Agency listed in [the exhibit attached to the complaint], using the Contact Information that they or the PBSA publishes for such, and none of them provided a copy of [p]laintiff's Consumer file.” Compl. [D.E. 1-1] at 2. This is not a common question of fact. Whether plaintiff contacted any specific Background Checker defendant and whether it provided a copy of plaintiff's consumer file to plaintiff is an individualized question of fact and will not benefit from class certification.
Plaintiff also claims that there is a question of law common to the alleged class, that is, whether “[a]ll ‘Background Checkers' are required by [15 U.S.C.] § 1681j(a)(1)(A) to provide a copy of a Consumer's file upon Request by that Consumer.” Compl. [D.E. 1-1] at 2. The undersigned disagrees.
15 U.S.C. § 1681j(a)(1)(A) provides that: “[a]ll consumer reporting agencies described in subsections (p) and (w) of section 1681a of this title shall make all disclosures pursuant to section 1681g of this title once during any 12-month period upon request of the consumer and without charge to the consumer.” 15 U.S.C. § 1681j(a)(1)(A). The requirement to annually provide consumers with a free copy of their consumer file under § 1681g is limited by a requirement that the consumer provide proper identification. See 15 U.S.C. §§ 1681g(a) (“Every consumer reporting agency shall, upon request, and subject to section 1681h(a)(1) of this title, clearly and accurately disclose to the consumer: (1) All information in the consumer's file at the time of the request[, subject to limited exceptions]” (emphasis added)); 1681h(a)(1) (“A consumer reporting agency shall require, as a condition of making the disclosures required under section 1681g of this title, that the consumer furnish proper identification.”) (emphasis added).
Accordingly, whether any specific Background Checker defendant is required to provide a copy of a specific consumer file to that consumer is a question of both fact and law. This includes whether or not the consumer provided proper identification to the relevant Background Checker defendant, which is an individualized, fact-specific inquiry.
Finally, plaintiff has not shown that the defenses of the PBSA will be representative of the defenses of the over 400 Background Checker defendants. According to the PBSA website “[the PBSA was f]ounded as a non-profit trade association . . ., [and] was established to represent the interest of companies offering employment and tenant background screening services . . . [and] to establish and promote a high level of ethics and performance standards for the screening industry.” PROFESSIONAL BACKGROUND SCREENING ASSOCIATION, https://thepbsa.org/about-us/about-pbsa (last visited October 4, 2023).
The PBSA is not itself a consumer reporting agency. Id. The PBSA is a non-profit trade association that appears to focus on education and advocacy in the background screening field. See id., https://thepbsa.org/resources/about-screening (last visited October 4, 2023) (“[T]he PBSA will continue to work together to advance excellence in the screening profession. Promoting an awareness of the importance of screening to organizations, government entities, legislators, and consumers will always be one of our primary goals.”).
Plaintiff does not allege that he requested a copy of his consumer file from the PBSA. See generally Compl. [D.E. 1-1]. Accordingly, plaintiff has not plausibly alleged that the PBSA is a member of the class, and the PBSA may therefore not be sued as a representative on behalf of the class. See F.R.C.P. 23(a) (“[A] member[] of a class may . . . be sued as [a] representative part[y]”) (emphasis added).
Similarly, plaintiff's reference to “Respondeat Superior” is also misplaced. Compl. [D.E. 1-1] at 12. While the PBSA appears to encourage and promote certain professional standards among its members, there is no indication that the PBSA has any type of operational control over its members, and especially no control with respect to a specific member's response to an individual request for a consumer file. Plaintiff has not alleged any facts to suggest that any refusal by a Background Checker defendant to provide plaintiff with a copy of his consumer file was based on any specific action or inaction of the PBSA.
Taking the facts in the light most favorable to the plaintiff, plaintiff has not alleged that the PBSA is a representative of the Background Checkers, nor has plaintiff presented a plausible theory of liability with respect to the PBSA. The undersigned therefore RECOMMENDS that all claims against the PBSA therefore be DISMISSED.
As the PBSA was the only defendant on which plaintiff predicated the proper venue of this court, see Compl. [D.E. 1-1] at 1, the entire complaint could be dismissed, see Peterman v. Causey, No. 5:13-CV-00085-D, 2013 WL 589009, at *2 (E.D. N.C. Feb. 14, 2013); see also 28 U.S.C. § 1406 (“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss . . . such case”). However, given that there are other defendants who appear to be domiciled in this district (see, e.g., criminalrecordcheck.com, which appears to be based in Raleigh, North Carolina) and in the interest of judicial economy, this court will also consider the merits of plaintiff's claims below.
IV. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
Plaintiff pleads three claims for relief. The undersigned RECOMMENDS that each of these claims be DISMISSED for the reasons provided below.
1. Failure to provide a free annual copy of consumer file
Plaintiff alleges that after contacting all of the enumerated Background Checker defendants, none provided plaintiff with a copy of his consumer file. Compl. [D.E. 1-1] at 5-6. Plaintiff asserts that this violates 15 U.S.C. § 1681j(a)(1)(A). Id. at 8. Plaintiff's complaint indicates that he requested his consumer file from the Background Checker defendants, and certain other consumer reporting agencies, exclusively by email. Compl. [D.E. 1-1] at 5. He alleges that the Background Checker defendants either did not respond to plaintiff's request for his consumer file or otherwise failed to provide plaintiff's consumer file in response to his request. Id. at 6.
Plaintiff notes that 19 of the Background Checker defendants responded that “they would provide [p]laintiff with a copy of his Consumer File if [p]laintiff submitted the request by telephone, or mail, or otherwise, at such time as [p]laintiff provided them with the necessary personally identifying information for them to do so.” Compl. [D.E. 1-1] at 5. In response to these responses, plaintiff argues that “a Consumer such as [p]laintiff in the instant case should not have to make more than a single request to a Consumer Reporting Agency to obtain a copy of his Consumer file.” Id.
Plaintiff's reasoning is not supported by 15 U.S.C. §§ 1681 et seq. (the “FCRA”). First, the FCRA requires that a consumer provide proper identification before a consumer reporting agency can provide a copy of the consumer's consumer file. See 15 U.S.C. § 1681h(a)(1). Nowhere does plaintiff allege that he provided such identification to any Background Checker defendant. Second, the FCRA does not provide consumers the ability to dictate the manner for requesting their consumer files. Rather, the FCRA requires consumer reporting agencies to adopt “reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. § 1681(b) (emphasis added). Plaintiff has not shown that the Background Checker defendants' procedures for requesting a consumer file were unreasonable. The approach plaintiff attempted to utilize would require Background Checker defendants to send consumer files in response to a simple email without any personally identifying information, which violates the FCRA, see 15 U.S.C. § 1681h(a)(1), and risks the privacy of consumers. See 15 U.S.C. § 1681(a)(4) (“There is a need to insure that consumer reporting agencies exercise their grave responsibilities with . . . a respect for the consumer's right to privacy.”).
Plaintiff alleges that 8 of the Background Checker defendants expressly denied plaintiff's request. Compl. [D.E. 1-1] at 5-6. As discussed above, the FCRA requires that a consumer provide proper identification before a consumer reporting agency can provide a copy of the consumer's consumer file to them. See 15 U.S.C. § 1681h(a)(1). Plaintiff has not alleged that he provided such documentation, and has not, therefore, plausibly alleged that these defendants violated the FCRA. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57 (alterations in original) (internal quotation marks omitted)) (noting that a complaint is insufficient if it offers “naked assertion[s] devoid of further factual enhancement.”); cf. also Willis v. Cap. One Corp., No. CIV-14-334-FHS, 2014 WL 7183272, at *2 (E.D. Okla. Dec. 16, 2014), aff'd, 611 Fed.Appx. 500 (10th Cir. 2015) (“Plaintiff has failed to allege the necessary preconditions to a claim for violation of [another section of the FCRA,] Section 1681s-2(b).”)
Plaintiff alleges that 7 of the Background Checker defendants “did respond that they were processing or otherwise pursuing [p]laintiff's request, but ultimately never did provide [p]laintiff with a copy of his Consumer File.” Id. at 6. Plaintiff alleges that the remainder of the Background Checker defendants did not respond to plaintiff's request at all. Id. at 6.
According to 15 U.S.C. § 1681j(a)(2), consumer reporting agencies have 15 days from the day they receive a request for a consumer file in which to respond. 15 U.S.C. § 1681j(a)(2). Plaintiff does not allege when any of the Background Checker defendants received his request and so has not plausibly alleged that they exceeded the statutory allotted time for responding.
In summary, plaintiff has not effectively alleged any concrete violation of the FCRA.
However, even if plaintiff had alleged an actual violation of the FCRA, plaintiff has failed to establish standing for his claim. The United States Supreme Court held in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), as revised (May 24, 2016), that the “‘irreducible constitutional minimum' of standing consists of three elements The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. at 338 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). “[The] plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements . . . [and] [w]here, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating' each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518, (1975) (last omission in original)).
“Without a sufficient allegation of harm to the named plaintiff in particular, plaintiffs cannot meet their burden of establishing standing.” Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, Inc., 578 U.S. at 339 (quoting Lujan, 504 U.S., at 560).
A mere procedural violation is insufficient to establish standing. As explained by the court in Spokeo, a case also involving an alleged violation of the FCRA:
Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, [the plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.Spokeo, Inc., 578 U.S. at 341.
Here, Plaintiff alleges that when seeking work as a prospective employee or contract business, he:
has a compelling interest in Consumer Reporting Agencies not reporting information to a prospective Client nor Employer that would cause them to rescind or deny an offer. To that end, and in a manner similar to a Consumer managing their Credit Score, a party must contact “Background Checkers” pre-emptively to guarantee the maximum possible accuracy of any Report relating to him that is furnished by “Background Checkers” to any prospective Client or Employer.Compl. [D.E. 1-1] at 6.
Plaintiff does not allege that any Background Checker defendant reported or is imminently expected to report any inaccurate information to prospective clients or employers or that any prospective client or employer has rescinded or denied an offer to plaintiff as a result of any action or omission by a Background Checker defendant in violation of 15 U.S.C. § 1681j(a)(1)(A). As such, the harm that plaintiff alleges is “conjectural or hypothetical,” Spokeo, 578 U.S. at 339, and plaintiff's claim must fail.
2. Unconstitutional for vagueness challenge
Plaintiff alleges that the FCRA (15 U.S.C. §§ 1681 et seq.) may be unconstitutional in its entirety due to vagueness. Compl. [D.E. 1-1] at 9. The statutory provision upon which plaintiff bases his constitutional claim is § 1681j(a)(1)(A), which references in relevant part “[a]ll consumer reporting agencies described in subsections (p) and (w) of section 1681a of this title.” 15 U.S.C. § 1681j(a)(1)(A) (emphasis added). Plaintiff points out that 15 U.S.C. § 1681a(w) is defined as “the Bureau [of Consumer Financial Protection]” and suggests the statute should instead be referring to subsections (p) and (x) of section 1681a. Compl. [D.E. 1-1] at 10 (citing 15 U.S.C. §§ 1681a(w), (x)).
Plaintiff alleges that “the stated Sections of the FCRA are unconstitutionally void for vagueness, because a party is unable to determine from whom they must obtain a free annual copy of their consumer file.” Compl. [D.E. 1-1] at 12. A statute is unconstitutionally vague if people of “common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). “The hurdle for finding a civil statute vague is . . . quite high: ‘the statute must be so vague and indefinite as really to be no rule or standard at all.'” Joe Hand Promotions, Inc. v. Hayes, No. 1:18CV531, 2019 WL 4246646, at *5 (M.D. N.C. Sept. 6, 2019) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)).
Plaintiff made this same claim before a federal court in California. See Bugoni v. Checkr Inc., No. 21-CV-05791-JSC, 2021 WL 4976040, at *6 (N.D. Cal. Oct. 7, 2021), report and recommendation adopted, No. 21-CV-05791-WHO, 2021 WL 4973975 (N.D. Cal. Oct. 26, 2021), appeal dismissed, No. 21-16994, 2022 WL 1732618 (9th Cir. Apr. 21, 2022). That court's response is equally applicable here:
The void-for-vagueness doctrine does not apply here because, as the historical notes to Section 1681j explain, Section 1681a(w) was redesignated as Section 1681a(x) in 2010. See Pub. L. 111-203, Title X, Sec. 1088(a)(1), 124 Stat. 2086 (2010). Thus, Section 1681j(a)(1)(A)'s reference to subsection (w), in fact, refers to subsection (x).Id.
As plaintiff's constitutional claim appears to be based upon a misunderstanding of certain historical progressions in a statute, it must also fail.
3. Gross Negligence, Professional Negligence
Plaintiff alleges three different theories of negligence under 15 U.S.C. § 1681o:
54) To the extent that the PBSA exists and operates as a separate legal entity, (i.e. nonprofit or other corporation), it is Respondeat Superior of [d]efendant “Background Checkers”, and negligent for failing to maintain FCRA compliance by its members, and liable for that negligence.
55) To whatever extent the PBSA acts collectively as an association of its members, it is negligent for those members failing to comply with the FCRA, and liable for that negligence.
56) To whatever extent “Background Checkers” are acting individually, and not in association with any other Consumer Reporting Agency, each “Background checker” named in in this matter is negligent for failing to comply with the FCRA.Compl. [D.E. 1-1] at 12-13.
15 U.S.C. § 1681o, in relevant part, provides that:
Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of-
(1) any actual damages sustained by the consumer as a result of the failure; and
(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.15 U.S.C. § 1681o(a).
As discussed above, plaintiff has not established standing with respect to the alleged statutory violation and has also not plausibly alleged a violation of the FCRA or actual damages. Accordingly, all three negligence claims fail.
While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Off., No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. May 17, 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016). Plaintiff's complaint exceeds the permissible bounds. Because of the deficiencies in plaintiff's complaint, he fails to state a claim upon which relief can be granted and is subject to dismissal. Accordingly, IT IS RECOMMENDED that plaintiff's complaint be DISMISSED.
V. CONCLUSION
For the reasons set forth above, IT IS RECOMMENDED that plaintiff's complaint be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until October 23, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).