Opinion
C/A 2:20-01748-RMG-MHC
07-17-2024
C. Holmes, a/k/a Cynthia Holmes, a/k/a Cynthia Holmes, M.D., a/k/a Cynthia Collie Holmes, Plaintiff, v. Granuaile, LLC; J.P. Walsh, individually and as related to Granuaile, LLC; L. Walsh, individually and as related to Granuaile, LLC, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff C. Holmes (also known as Cynthia Holmes, Cynthia Holmes, M.D., and Cynthia Collie Holmes), proceeding pro se, brings this civil action asserting claims under state law. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(D.S.C.).
Plaintiff, who appears to be an attorney admitted to practice in the State of South Carolina (see South Carolina Bar website, https://www.scbar.org/lawyers/directory/profile/1337), is proceeding pro se with respect to her claims in this action. There is no indication that she is currently admitted to practice in this Court.
On August 5, 2020, the undersigned entered a report and recommendation (ECF No. 17) recommending that this action be dismissed without prejudice as frivolous because the doctrine of res judicata was applicable to bar Plaintiff's claims. In the report and recommendation, the undersigned noted that this action names the same defendants Plaintiff named in a previous case she filed in this Court, Holmes v. Granuaile, LLC, No. 2:16-3969-BHH-BM (D.S.C.), herein also referred to as Holmes I. It was also noted that there was a final judgment on the merits in Holmes I; the Complaint in this action was nearly identical to the amended complaint in Holmes I; and Plaintiff raised the same claims (trespass, nuisance, negligence, and unjust enrichment) in both actions. See ECF No. 17. Plaintiff was informed that the report and recommendation constituted notice to her of material defects in her filing and it was explained that she needed to file a complete, proposed amended complaint if she wanted to amend her Complaint. Id. at 5.
Plaintiff filed objections (ECF No. 22) to the report and recommendation but did not file any proposed amended complaint. The District Judge reviewed the objections and found them to be without merit, and dismissed the Complaint without prejudice because the action was barred by the doctrine of res judicata. ECF No. 29. Plaintiff's motion for reconsideration was denied on March 25, 2021 (ECF No. 35), and Plaintiff appealed. The Fourth Circuit dismissed the appeal and directed that this Court either afford Plaintiff an opportunity to amend or dismiss the complaint with prejudice. See ECF No. 43. On April 12, 2022, the District Judge granted Plaintiff thirty days to file an amended complaint. ECF No. 47. Plaintiff filed an Amended Complaint on May 11, 2022. ECF No. 50.
Plaintiff titled this the Second Amended Complaint (ECF No. 50 at 1), but it is the First Amended Complaint.
The District Judge referred this action back to the undersigned for consideration of the Amended Complaint. ECF No. 53. Plaintiff filed motions to stay (ECF No. 55) and to amend/correct (ECF No. 56) which were denied by the District Judge on August 17, 2022. ECF No. 57. Plaintiff appealed these decisions and the Fourth Circuit Court of Appeals dismissed the appeal on June 9, 2023 (a mandate was issued on July 26, 2023 - ECF No. 68). Plaintiff filed a petition for writ of certiorari that was denied (ECF No. 71) by the Supreme Court of the United States. See Holmes v. Granuaile, LLC, No. 23-5311, 2024 WL 674883 (U.S. Feb. 20, 2024).
This case was previously assigned to United States District Judge Bruce H. Hendricks. It is currently assigned to United States District Judge Richard M. Gergel. See ECF Nos. 72, 73.
I. BACKGROUND
In her Amended Complaint, Plaintiff again brings claims against Defendants Granuaile, LLC (Granuaile); J. P. Walsh (J. P. Walsh), individually and as related to Granuaile, LLC; and L. Walsh (L. Walsh), individually and as related to Granuaile, LLC. ECF No. 50 at 1. She asserts that this Court has jurisdiction under 28 U.S.C. § 1332 because there is complete diversity of the parties and the amount in controversy allegedly exceeds $75,000. Id. at 2.
Plaintiff states that she owned and used as a primary residence real property located on Poe Avenue in Sullivan's Island, South Carolina during all times relevant to her claims. ECF No. 50 at 3. She claims that Defendants allegedly owned, managed, and/or maintained real property “adjacent to the Plaintiff's property” during the relevant time period. Id. at 2. In her “FACTS” section, Plaintiff asserts:
TENTH: On or about April 19, 2014, Defendants caused ongoing, continuing, and abatable trespass and injury to Plaintiff, Plaintiff's family and/or Plaintiff's property adjacent and next door to that of Defendants in Charleston County, including but not limited to, trespass by water and/or contaminants collecting and standing in and/or under residential property, dwellings, and rear enclosed areas where children and pets play and live, by failing to maintain historical drainage patterns in a Flood Plain, by interrupting natural drainage patterns, and/or by wrongful collection and discharge of Defendants' storm water, contaminants, drainage and/or runoff onto Plaintiff's adjacent as well as surrounding properties.
ELEVENTH: The Plaintiff has provided notice to Defendants of objections to Defendants' voluntary wrongdoing without Plaintiff's permission. Defendants have failed and refused, in a willful, wanton, and/or reckless manner, to correct the wrongdoing which is ongoing, continuing, and abatable.
ECF No. 50 at 3. Plaintiff alleges claims for trespass, nuisance, negligence, and unjust enrichment. Id. at 4-7. She requests monetary damages. Id. at 8.
In Holmes I, Plaintiff alleged that on or shortly after February 2014, the defendants (Granuaile, J.P. Walsh, and L. Walsh) allegedly committed continuous and recurring acts of trespass by water and/or contaminants without Plaintiff's permission and despite her objection. She asserted claims for trespass, nuisance, negligence, and unjust enrichment based on her allegations concerning water and other substances allegedly coming from the defendants' property which is next to Plaintiff's property. Plaintiff specifically alleged in Holmes I that there was improper discharge of stormwater, blockage of natural and historical drainage patterns, improper discharge of contaminants/chemicals, and the introduction of a reservoir for mosquitoes to breed. Holmes v. Granuaile, LLC, No. 2:16-3969-BHH-BM (D.S.C.), Docket No. 36. After a period of discovery, the defendants in Holmes I filed a motion for summary judgment, the motion for summary judgment was granted, and the case was dismissed. See Holmes v. Granuaile LLC, No. CV 2:16-3969-BHH, 2019 WL 350391 (D.S.C. Jan. 29, 2019), aff'd, 778 Fed.Appx. 222 (4th Cir. 2019).
II. STANDARD OF REVIEW
Although Plaintiff is not proceeding in forma pauperis, this filing is nonetheless subject to review pursuant to the inherent authority of this Court to ensure that a plaintiff has standing; subject matter jurisdiction exists; and the case is not frivolous. See Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. Aug. 22, 2012); Ferguson v. Wooton, 741 Fed.Appx. 955 (4th Cir. 2018) (collecting cases and explaining that “[f]rivolous complaints are subject to dismissal pursuant to the district court's inherent authority, even when the plaintiff has paid the filing fee” and that “dismissal prior to service of process is permissible when a court lacks subject matter jurisdiction over a patently frivolous complaint”); Smith v. Kagan, 616 Fed.Appx. 90 (4th Cir. 2015) (“Frivolous complaints are subject to dismissal pursuant to the court's inherent authority, even when the plaintiff has paid the filing fee); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-364 (2d Cir. 2000). “[I]t is well established that a court has broad inherent power sua sponte to dismiss an action, or part of an action, which is frivolous, vexatious, or brought in bad faith.” Brown v. Maynard, No. L-11-619, 2011 WL 883917, at *1 (D. Md. Mar. 11, 2011) (citing cases). Therefore, a court has “the discretion to dismiss a case at any time, notwithstanding the payment of any filing fee or any portion thereof, if it determines that the action is factually or legally frivolous.” Id. As such, this case is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See, e.g., Ross v. Baron, 493 Fed.Appx. at 406; Carter v. Ervin, No. 14-0865, 2014 WL 2468351 (D.S.C. June 2, 2014) (“[E]ven when the filing fee is paid, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous.”); Cornelius v. Howell, No. 06-3387, 2007 WL 397449, at *3 (D.S.C. Jan. 8, 2007), report and recommendation adopted, 2007 WL 4952430 (D.S.C. Jan. 30, 2007) (summary dismissal of fee paid case where the court lacked subject matter jurisdiction), aff'd, 251 Fed.Appx. 246 (4th Cir. 2007).
Plaintiff has paid the full filing fee. See Receipt SCX200017108.
Pre-screening under 28 U.S.C. § 1915 is inapplicable in pro se, non-prisoner, fee-paid cases. See Bardes v. Magera, No. 2:08-487-PMD-RSC, 2008 WL 2627134, at *8-10 (D.S.C. June 25, 2008) (finding persuasive the Sixth Circuit's opinion in Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999), that 28 U.S.C. § 1915(e)(2) is inapplicable to actions that are not pursued in forma pauperis).
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
It is recommended that this action be dismissed as frivolous because it is barred by the doctrine of res judicata.
Collateral estoppel and res judicata are affirmative defenses that typically must be raised by an opposing party. Fed.R.Civ.P. 12. Nevertheless, a court may sua sponte raise issues of preclusion in “special circumstances,” even though the defense has not been raised. Arizona v. California, 530 U.S. 392, 412 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 332 (190) (Rehnquist, J., dissenting) (internal quotation marks omitted)). “This result is fully consistent with the policies underlying res judicata; it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste. Id.; see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (determining res judicata may be raised and considered sua sponte because it implicates important institutional interests of the judiciary); Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (finding that district court did not err by raising the issue of collateral estoppel on its own because of the “strong public policy in economizing the use of judicial resources of avoiding relitigation”); Smith v. Spears, No. CV 2:17-3384-PMD-BM, 2018 WL 4523201, at *3 (D.S.C. Feb. 8, 2018) (“While res judicata is ordinarily an affirmative defense, a court may sua sponte raise the issue of res judicata in special circumstances where the previous action was litigated in the same district court, or where all relevant data and legal records are before the court and judicial economy will be served by invoking res judicata sua sponte.”), report and recommendation adopted, 2018 WL 2772668 (D.S.C. June 11, 2018). Here, the previous action (Holmes I) was litigated in this Court and judicial economy will be served by involving res judicata sua sponte.
Where the prior proceeding involves the litigation of a federal question claim in federal court, federal law regarding res judicata applies. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506-09 (2001); see also Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000) (“Because [plaintiff] brought his first suit against [defendant] in federal court, federal rules of res judicata apply.”). The Fourth Circuit Court of Appeals recently noted that “when a prior federal action ‘based on diversity jurisdiction' has been ‘adjudicated in [a] federal district court ... [u]nder Semtek, the preclusive effect, if any, of the [prior federal court] action should ... be[ ] decided under the res judicata law of the state' in which the court was located.” T.H.E. Ins. Co. v. Davis, 54 F.4th 805, 819-820 (4th Cir. 2022), citing Q Intern. Courier Inc. v. Smoak, 441 F.3d 214, 218 (4th Cir. 2006).
South Carolina law applies when the first action is brought in the South Carolina courts and the second action is filed in the federal district court and involves diversity jurisdiction. See Sanders v. Novant Health, Inc., No. 0:20-01287, 2021 WL 1140222, at *2 (D.S.C. Mar. 25, 2021) (unpublished) (“A federal court sitting in diversity jurisdiction must apply the res judicata or collateral estoppel law of the state from which the original judgment issued.”); In re McNallen, 62 F.3d 619, 624 (4th Cir. 1995) (“In determining the preclusive effect of a state-court judgment, the federal courts must, as a matter of full faith and credit, apply the forum state's law of collateral estoppel.”).
In Semtek, the first case was dismissed on limitations grounds by a federal court in California sitting in diversity. The second action was brought in the state court of Maryland asserting similar claims under Maryland law. The Supreme Court found that “[b]ecause the claim-preclusive effect of the California federal court's dismissal ‘upon the merits' of petitioner's action on statute of limitations grounds is governed by a federal rule that in turn incorporates California's law of claim preclusion (the content of which we do not pass upon today), the Maryland Court of Special Appeals erred in holding that the dismissal necessarily precluded the bringing of this action in the Maryland courts.”). Semtek, 531 U.S. at 509.
Davis involved a question of insurance coverage. A separate damages lawsuit was filed in the District of Maryland, pursuant to diversity jurisdiction, and the case was resolved in a settlement. The Fourth Circuit found that “Maryland law controls a determination of the preclusive effect, if any, of the settlement.” Davis, 54 F.4th at 819.
Holmes I was based on diversity jurisdiction and was adjudicated in the District of South Carolina such that it appears South Carolina law is applicable. Under South Carolina law, res judicata “defines the effect a valid judgment may have on subsequent litigation between the same parties and their privies. Res judicata ends litigation, promotes judicial economy and avoids the harassment of relitigation of the same issues.” Plum Creek Dev. Co. v. City of Conway, 512 S.E.2d 106, 108 (S.C. 1999) (citing J. Flanagan, South Carolina Civil Procedure, p. 642). Further, res judicata “bars subsequent suit by the same parties on the same issues ... [and] bars subsequent suit by the same parties when the claims arise out of the same transaction or occurrence that was the subject of the prior suit between those parties.” Sub-Zero Freezer Co. v. R.J. Clarkson Co., 417 S.E.2d 569, 571 (S.C. 1992). Under the doctrine of res judicata, “[a] litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit.” Hilton Head Center of South Carolina, Inc. v. Public Service Comm'n of South Carolina, 362 S.E.2d 176, 177 (S.C. 1987). To establish res judicata there must be: “(1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit.” Riedman Corp. v. Greenville Steel Structures, Inc., 419 S.E.2d 217, 218 (S.C. 1992); see also Sealy v. Dodge, 347 S.E.2d 504, 545 (S.C. 1986); Plum Creek Dev. Co., 512 S.E.2d at 109.
Here, there is identity of the parties as Plaintiff is suing the same parties in this action as she did in Holmes I. There is also identity of the subject matter. Plaintiff once again brings claims concerning water and other contaminants allegedly coming onto her property from the adjacent property after improvements to the driveway on the adjacent property in 2014. In the current action, Plaintiff brings claims that she brought or could have brought in Holmes I. Finally, there was an adjudication of the issue in the former suit because the defendants' motion for summary judgment was granted and the case was dismissed. See Amended Complaint, ECF No. 50; Holmes I, Docket Number 36; Holmes v. Granuaile LLC, No. CV 2:16-3969-BHH, 2019 WL 350391 (D.S.C. Jan. 29, 2019).
If federal law of res judicata is applicable, this case is also subject to summary dismissal. Under the doctrine of claim preclusion, or res judicata in the Fourth Circuit, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Brown v. Felsen, 442 U.S. 127, 131 (1979); Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991)). “By precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, res judicata encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Id. (citation and internal quotation marks omitted).
For the doctrine of res judicata to be applicable in the Fourth Circuit, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and later suit; and (3) an identity of parties or their privies in the two suits. Martin v. Am. Bancorp. Ret. Plan, 407 F.3d 643, 650 (4th Cir. 2005); Nash Cnty Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981). Here, there was a final judgment on the merits in the prior suit (Holmes I), the causes of action raised in both this lawsuit and in Holmes I are the same, and the identity of parties is the same in the two lawsuits. See Amended Complaint, ECF No. 50; Holmes I, Docket Number 36; Holmes v. Granuaile LLC, No. CV 2:16-3969-BHH, 2019 WL 350391 (D.S.C. Jan. 29, 2019).
Plaintiff may be attempting to argue that the claims she raises in the present action are different than those raised in Holmes I. However, under res judicata “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. at 398 (emphasis added). Moreover, Plaintiff “cannot circumvent the doctrine of res judicata by simply asserting in totally conclusory terms that injuries are ‘ongoing.'” Chaudhary v. Stevens, No. CIV.A. 3:05CV382, 2005 WL 1923231, at *4 (E.D. Va. Aug. 9, 2005), aff'd, 182 Fed.Appx. 204 (4th Cir. 2006).
Thus, the doctrine of res judicata is applicable to bar Plaintiff's claims and the present lawsuit is subject to summary dismissal as it is frivolous. See Brown v. South Carolina, No. 3:13-2983-MBS-PJG, 2014 WL 4826152, *2 (D.S.C. Sept. 24, 2014) (determining that because the pro se litigant had filed another case reasserting the same claims against the same parties as in a prior case, “all three elements of res judicata have been met, subjecting Plaintiff's action to summary dismissal as frivolous”), aff'd, 589 Fed.Appx. 190 (4th Cir. 2015); see also Nelums v. Hutchens L. Firm, LLP, No. CV 3:21-2161-JFA-PJG and 3:21-2162-MGL-PJG, 2021 WL 4596958 (D.S.C. Aug. 31, 2021), report and recommendation adopted sub nom. Nelums v. Hutchens L. Firm, LLP, No. 3:21-CV-2161-JFA-PJG, 2021 WL 4272597 (D.S.C. Sept. 21, 2021), and report and recommendation adopted sub nom. Nelums v. Waites, No. CV 3:21-2162-MGL-PJG, 2022 WL 304796 (D.S.C. Feb. 2, 2022), aff'd, No. 22-1223, 2022 WL 2303962 (4th Cir. June 27, 2022) (dismissing complaints sua sponte as frivolous where the complaints failed to comply with Fed.R.Civ.P. 8, failed to explain how the plaintiffs had standing to bring the action, appeared to request the bringing of criminal charges for which the plaintiffs did not have standing or authority to bring by fling a civil lawsuit, and were barred by the principles of res judicata); Trawick v. Med. Univ. of S.C., No. 2:16-cv-730-DCN-MGB, 2016 WL 8650132, at *4 (D.S.C. June 28, 2016) (recommending dismissal of duplicative claims sua sponte as they were barred by the doctrine of res judicata and frivolous), report and recommendation adopted, 2016 WL 8650131 (D.S.C. July 7, 2016), aff'd, 671 Fed.Appx. 85 (4th Cir. 2016). “[D]istrict courts are not required to entertain duplicative or redundant lawsuits.” Cottle v. Bell, No. 00-6367, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000); see also MacKinnon v. City of N.Y., 580 Fed.Appx. 44 (2d Cir. 2014) (“[w]e have regularly upheld a district court's authority to dismiss sua sponte a pro se complaint on res judicata grounds”), cert. denied, 575 U.S. 1010 (2015); Paul v. de Holczer, No. 3:15-2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015) (dismissing fee paid case, holding that “repetitious litigation of virtually identical causes of action” may be dismissed as frivolous), aff'd, 631 Fed.Appx. 197 (4th Cir. Feb. 4, 2016); Southern Holdings, Inc. v. Horry Cty., No. 4:02-1859-RBH, 2014 WL 11071017, *6 (D.S.C. June 11, 2014) (“the many previous grounds argued and ruled on in previous orders and upheld on appeal lack merit and are simply duplicative”).
Within her Amended Complaint, Plaintiff includes a heading titled “Motion” in which she writes:
SIXTH: The plaintiff timely makes this motion to the District Court for disposition by the District Court, not a magistrate, on plaintiff's motion for the substantial right of de novo determination by Article III Judicial Officer without Report & Recommendation (R&R) on dispositive matters. There is no consent and no express, voluntary consent to a magistrate.
SEVENTH: If the District Court denies the motion for the substantial right of de novo determination by Article II Judicial Officer without R&R on dispositive matters, plaintiff respectfully requests permission to appeal this issue to the United States Court of Appeals for the Fourth Circuit with stay pending resolution.
ECF No. 50 at 2-3. To the extent that this is a motion embedded within the Amended Complaint, it is recommended that it be denied because the referral to a magistrate judge was properly made pursuant to Local Civil Rule 73.02(B)(D.S.C.) and 28 U.S.C. § 636. And, if timely and proper objections are made to any report and recommendation, the district court will review the objections under a de novo standard. See 28 U.S.C. § 636(b)(1).
Moreover, after Plaintiff filed her Amended Complaint and the case was referred back to the undersigned, Plaintiff filed a motion to stay (ECF No. 55) and a motion (ECF No. 56) requesting that the District Judge amend/correct her order (ECF No. 53) referring the case back to the undersigned. In a text order (ECF No. 57) entered August 17, 2022, the District Judge denied Plaintiff's motions stating:
After review, the Court hereby denies Plaintiff's most recent motions. First, in her motion for stay, or in the alternative, for permission to appeal (ECF No. 55), Plaintiff asserts that she declines consent to a Report and Recommendation by a Magistrate Judge, and she moves for disposition of the matter by a District Judge. Next, in her Rule 59(e) motion to alter or amend (ECF No. 56), Plaintiff asserts that the Court's July 21, 2022 order erroneously states “consent” regarding referral to a Magistrate, and she indicates that she does not consent to a Magistrate Judge reviewing her case. ***As an initial matter, Plaintiff misconstrues the term
“consent” on the July 21 order. (ECF No. 56-1). The inclusion of “consent” in “subject” simply refers to the electronic “activity” used to file the text order in the Court's electronic filing system. Importantly, nowhere in the Court's actual text order does it indicate that Plaintiff consents to referral to a Magistrate Judge. That is because reference of this case to a Magistrate Judge is automatic pursuant to the Local Civil Rules of this District, as Plaintiff is proceeding pro se in this action. Specifically, Local Civil Rule 73.02 concerns “Assignment of Duties to Magistrate Judges” and provides that the “Clerk of Court shall assign the following matters to a full-time magistrate judge upon filing... (e) [a]ll pretrial proceedings involving litigation by individuals proceeding pro se.” Local Civil Rule 73.02 (D.S.C.). It is thus irrelevant whether Plaintiff consents, because such reference to a Magistrate Judge is automatic. Ultimately, the Court finds no merit to Plaintiff's motions, and the Court hereby denies both Plaintiff's motion for stay and her motion to alter or amend.
Plaintiff appealed the Text Order (ECF No. 57) to the Fourth Circuit Court of Appeals, which dismissed the appeal because the orders Plaintiff sought to appeal were neither final orders nor appealable interlocutory or collateral orders. The Supreme Court denied Plaintiff's petition for writ of certiorari. See ECF Nos. 66, 68, 71; Holmes v. Granuaile, LLC, No. 22-1904, 2023 WL 3918692 (4th Cir. June 9, 2023), cert. denied sub nom. C. Holmes v. Granuaile, LLC, 144 S.Ct. 826 (2024).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that this action be dismissed without issuance and service of process and without leave to amend.
See Britt v. DeJoy, 45 F.4th 790, 796 (4th Cir. 2022) (holding that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
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 committee's 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
Post Office Box 835
Charleston, South Carolina 29402
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).