Opinion
C/A 6:21-cv-00223-TLW-KFM
02-02-2021
Richard Demarcus Rosemond, Plaintiff, v. Berkshire Hathaway, In., Home Services Corporation, D. Dan Joyner, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion to dismiss filed by the defendants (doc. 6). The plaintiff, proceeding pro se, brought this action seeking damages from the defendants. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
On January 19, 2021, the plaintiff filed the instant action, seeking damages from the defendants (doc. 1). On February 2, 2021, the defendants filed a motion to dismiss (doc. 6), even though this court has not yet authorized service or indicated whether the plaintiff's case is in proper form for judicial review.
APPLICABLE LAW & ANALYSIS
The plaintiff seeks to proceed in forma pauperis in this action pursuant to 28 U.S.C. § 1915. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure examines whether the complaint fails to state facts upon which jurisdiction can be founded. Fed.R.Civ.P. 12(b)(1). It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. See Id. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Here, as noted, the defendants have filed a motion to dismiss, arguing that the court lacks subject matter jurisdiction over this case (doc. 6). However, at this time, initial review of the plaintiff's case pursuant to 28 U.S.C. § 1915 remains ongoing and service of the complaint has not yet been authorized. As such, because the court is reviewing the plaintiff's complaint pursuant to 28 U.S.C. § 1915, the defendants' motion to dismiss should be denied without prejudice as premature.
RECOMMENDATION
Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the defendants' motion to dismiss (doc. 6) be denied without prejudice as premature.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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 v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).