Opinion
C/A No. 4:16-1475-RBH-KDW
10-20-2017
Landmark American Insurance Company, Plaintiff, v. Accord Architects & Engineers, LLC; Bret Allan Turkall; Bradley C. Jordan; Christopher R. Clark; Jonathan D. Goerling; and BES Design/Build, LLC, Defendants.
REPORT AND RECOMMENDATION
This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation ("Report") as to the Motion for Summary Judgment, ECF No. 49, and Motion for Default Judgment, ECF No. 50, filed by Plaintiff Landmark American Insurance Company ("Plaintiff" or "Landmark"). Landmark seeks a declaration as to whether it has any duty to defend or indemnify parties involved in a state-court action ("Underlying Litigation" or "BES Litigation") brought by BES Design/Build, LLC ("BES/BES Litigation"). See Compl., ECF No. 1. I. Background
BES Design/Build, LLC v. Accord Architects and Engineers (AA&E); JDG Engineering, LLC; Bret Allen Turkall, Individually and as Agent for AA&E; Bradley C. Jordan, Individually and as Agent for AA&E; Christopher R. Clark, Individually and as Agent for AA&E, and Jonathan D. Goerling, Individually and as Agent for A&E, C/A No. 2015-CP-10-6850 (Charleston Cnty. (SC)). Publicly available documents indicate the underlying litigation is ongoing but that Christopher R. Clark ("Clark") was dismissed from the BES Litigation in September 28, 2016. In addition, the cause of action seeking a temporary restraining order was dismissed as to Clark and Bradley C. Jordan ("Jordan"). http://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10002&Casenum=2015CP1006850&CaseType=V (last visited Oct. 20, 2017).
The policy at issue here is a Professional Liability Policy issued by Landmark to Accord Architects & Engineering, LLC ("AAE"). See Policy, ECF Nos. 1-1, 49-1. Subject to a reservation of rights, Landmark has been providing a defense to AAE as well as Jordan, Bret Allan Turkall ("Turkall"), and Clark in the Underlying Litigation. ECF No. 1-2 (Mar. 9, 2016 Letter from Landmark to AAE, Jordan, Turkall, and Clark advising them Landmark is retaining defense counsel to defend them in the BES Litigation, but that it reserves the right to deny coverage, to seek a judicial determination of whether coverage exists, and to withdraw from representation upon proper notice).
Defendant BES appeared through counsel in this matter and submitted an answer denying many of the Complaint's allegations, submitting that coverage exists, and asking that the matter be dismissed. ECF No. 9. Other than companion documents filed along with its Answer, BES has not responded to any motions nor has it submitted any additional filings in this matter. As the Policy is a contract between Landmark and AAE, the Declaratory Judgment sought does not focus on BES itself, other than to the extent it impacts insurance coverage for the BES Litigation. Defendants Clark and Turkall appeared pro se and responded to the Complaint. ECF Nos. 12, 23. The remaining Defendants—AAE and Jonathan D. Goerling ("Goerling")—did not respond to Landmark's Complaint and have never appeared in this action for any reason. The record includes Landmark's affidavits of service as to all Defendants. ECF No. 7. At Landmark's request, the Clerk of Court entered default against AAE, Jordan, and Goerling (collectively "Defaulting Defendants"). See ECF Nos. 33-34, 45, 47. II. Declaratory judgment actions
Plaintiff brings this action pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and under the court's diversity jurisdiction, 28 U.S.C. § 1332. See Compl. ¶¶ 1-10. Plaintiff submits there "exists a bonafide actual present controversy and practical need for the declaration of the rights and obligations for Landmark . . . ." Id. ¶ 11. "A federal court has the discretion to entertain a declaratory judgment action when it finds that the declaratory relief sought (i) will serve a useful purpose in clarifying and settling the legal relations in issue; and (ii) will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Cont'l Cas. Co. v. Fuscardo, 35 F.3d 963, 966 (4th Cir. 1994) (citation and internal quotation marks omitted). Although discretionary, "a district court must have 'good reason' for declining to exercise its declaratory judgment jurisdiction." Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 594 (4th Cir. 2004) (quoting Cont'l Cas. Co., 35 F.3d at 965). Here, no party has argued it would be inappropriate for the court to consider Plaintiff's action at this time. Landmark's Complaint raises issues of law whose resolution would "serve a useful purpose in clarifying and settling the legal relations in issue[.]" Cont'l Cas. Co., 35 F.3d at 966. The undersigned is of the opinion that this court should consider Landmark's request for declaratory judgment now. III. Pending motions
Landmark's two pending motions seek essentially the same relief: the court's declaration that Landmark owes no duty to defend or to indemnify Defendants in the Underling Litigation. See Mot. Summ. J. 1, ECF No. 49 (seeking judgment as a matter of law "holding the Landmark Policy does not provide coverage for the allegations of the underlying BES Complaint, and that there is no duty to defend or indemnify the underlying defendants for the BES Complaint"); Mot. Default J. 13, ECF No. 50 (seeking default judgment as to Defaulting Defendants "declaring that the Landmark Policy does not provide [Defendants] coverage for the allegations made in the BES Complaint, and that Landmark has no duty to defend or indemnify them in that action").
A. Facts
Landmark issued a Professional Liability Policy, Policy Number LHR755652, to AAE. Compl. ¶ 29. A complete and accurate copy of the Policy is attached to the Complaint. See ECF No. 1-3. Accord Architects & Engineers, LLC is listed at the Named Insured on the Policy Declarations. Id., p.2. The "Professional Services" listed in the Policy's Declarations are "ARCHITECTURE, CIVIL AND STRUCTURAL ENGINEERING, INTERIOR DESIGN." Id.
As explained by Landmark, see ECF No. 49 at 11, the Policy at issue is a professional liability errors and omissions policy that relates to risks inherent in the practice of a profession. The Policy is not a general commercial liability ("CGL") policy, which is a type of policy often purchased by businesses for a broader range of insurance coverages.
1. The Policy
The Insuring Agreement of the Policy states in pertinent part as follows:
Part I. Insuring Agreements
A. Covered Services
The Company will pay on behalf of the Insured as shown in the Declarations, all sums that the Insured becomes legally obligated to pay as Damages and associated Claim Expenses arising out of a negligent act, error or omission, even if such Claim is groundless, false or fraudulent, in the rendering of or failure to render Professional Services as a described in the Declarations, provided that the:
1. Claim is first made against the Insured during the Policy Period, and reported to the Company no later than sixty (60) days after the end of the Policy Period;
2. Negligent act, error or omission took place in a covered territory;
3. Negligent act, error or omission took place after the Retroactive Date shown in the Declarations.
* * *
E. Covered Persons and Entities
1. Named Insured as shown in the Declarations, and if the Named Insured is an individual, his or her spouse, or domestic partner, but only with respect to the professional services rendered by or on behalf of the Named Insured;
2. Any present or former principal, partner, officer, director, or employee of the Named Insured, but only as respects professional services rendered on behalf of the Named Insured;
* * *
Part II. Exclusions
* * *
This policy does not apply to any Claim or Claim Expenses based upon or arising out of:
* * *
F. Dishonest, fraudulent, criminal or intentional acts, errors or omissions committed by or at the direction of any Insured. However, if after final adjudication it is deemed that the Insured is not guilty of the allegations of dishonest, fraudulent, criminal or intentional acts, errors or omissions, the Company will indemnify the Insured for those Claim Expenses, subject to the Limit of Liability as stated in the policy.
* * *
Part III. Definitions
* * *
F. Damages means monetary judgment, award or settlement, except those for which insurance is prohibited by law. Damages does not include punitive or exemplary Damages, fines, penalties, sanctions, taxes, awards, or Damages that are multiples of any covered Damages, or disputed fees, deposits, commissions or charges for goods or services.
ECF No. 1-3 at 4-6, 8-9 (emphases in policy).* * *
2. The BES Complaint
Taken largely from Landmark's Motions and the BES Complaint itself (copy available at ECF No. 1-1), pertinent facts from the BES Litigation follow:
On or about October 1, 2013, BES hired Defendant Turkall as its Lead/Senior Mechanical Engineer for its Engineering Design section. BES Compl. ¶ 11, copy available at ECF No. 1-1. Turkall's duties allegedly included serving as an engineer and having responsibilities for business development for BES. Id. The BES Complaint also alleges that on or about April 14, 2014, BES hired Goerling as an engineer, and that his duties included serving as an engineer and business development for BES. Id. ¶ 12. The BES Complaint alleges that both Turkall and Goerling signed confidentiality and non-compete agreements that, among other things, obligated them to devote their work-related efforts to their duties at BES, and to protect and preserve BES's information and trade secrets. Id. ¶ 13-14. It is further alleged that these obligations continued beyond their termination of employment with BES, and that at no time were they to have any direct contact with BES's personnel, customers, or clients. Id. The BES Complaint further alleges that in September 2014, Turkall introduced BES's managing partner to Jordan, who was part-owner of AAE. Id. ¶ 15. As a result of the meeting, it is alleged that BES and AAE agreed to pursue potential government project opportunities based on BES's established relationship with the Veteran's Administration ("VA") and designation as a Certified Service-Disabled Veteran-Owned Small Business. Id. ¶ 16. The BES Complaint further alleges that in April 2015, BES and AAE were successful in being selected for two projects with the VA. In accordance with the parties' agreement, AAE was designated as the prime contractor and BES was designated a sub-contractor. Id. ¶ 17. BES alleges that during the time Turkall was employed at BES and supervised, developed, and negotiated the scope of work and fees with AAE for the two VA contracts, Turkall was also surreptitiously employed and working for AAE in direct violation and contrary to the confidentially and non-compete agreements entered into by Turkall with BES. Id. ¶ 18-19.
BES alleges Turkall "was not acting with the utmost good faith, honesty, loyalty, and/or in the best interest of BES and was instead acting in [] his own best interests and those of [AAE] at the expense of BES and in direct contradiction to his confidentiality and non-compete agreements with BES." BES Compl. ¶ 22. The BES Complaint also alleges that "in furtherance of Defendant Turkall's and Defendant [AAE]'s best interests and in direct contradiction with his confidentiality and non-complete agreements with BES, Defendant Turkall, after his resignation from BES, was directly contacting BES's employees in an attempt to encourage and/or induce them to resign from BES and take employment with [AAE], a company in which Turkall has part ownership." Id. ¶ 23. BES alleges that Turkall induced Goerling to leave BES's employment and to establish his own engineering firm, JDG." Id. ¶ 24. BES further alleges that "all of the Defendants thereafter conspired to engage in the acts alleged" in the BES Complaint, "knowing that the other Defendants' acts violated their obligations to maintain BES's confidential and proprietary information, and that the Defendants intended to and did in fact conspire with one another to improperly acquire, use, and disclose BES's confidential and proprietary information and other secrets." Id. ¶ 26.
The BES Complaint alleges that "through their elaborate fraudulent scheme to illegally procure BES's intellectual property and personnel," id. ¶ 28, defendants harmed BES. The BES Complaint includes the following causes of action:
As noted above, the state court has dismissed Clark from the BES litigation.
1. Breach of Duty of Loyalty as to Defendants Turkall and Goerling;BES Compl. ¶¶ 29-83. In addition to monetary damages, including punitive and exemplary damages as to all defendants, BES seeks a temporary restraining order, attorneys' fees, and costs against all defendants. See id. ¶¶ 37, 50, 63, 71, 78, 83-91.
2. Breach of Fiduciary Duty as to Defendants Turkall and Goerling;
3. Breach of Contract as to Defendants Turkall and Goerling;
4. Breach of Contract Accompanied by Fraudulent Act as to Defendants Turkall and Goerling;
5. Trade Secrets Act as to all Defendants;
6. Civil Conspiracy as to all Defendants;
7. Interference With Contractual Relations as to all Defendants.
B. Motion for Summary Judgment, ECF No. 49
1. Standard of review
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
2. Analysis
Plaintiff's Motion for Summary Judgment seeks judgment as a matter of law "holding the Landmark Policy does not provide coverage for the allegations of the underlying BES Complaint, and that there is no duty to defend or indemnify the underlying defendants for the BES Complaint." ECF No. 49 at 1. As is standard, the court sent an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), to the parties that appeared pro se—Turkall and Clark—advising them of the summary judgment procedure and of the need to file adequate responses to the pending Motion. ECF No. 52. Pro se Defendant Clark submitted a response on April 6, 2017. ECF No. 56. No other Defendant, including pro se Defendant Turkall, has filed a response to Plaintiff's pending Motion for Summary Judgment.
Although the court issued a second order again advising Turkall of the importance of responding to the Motion for Summary Judgment, ECF No. 74, he did not respond. That Order was recently returned as undeliverable. ECF No. 79.
Landmark summarizes its summary-judgment argument as follows:
This underlying BES lawsuit is not covered by a professional liability errors and omissions policy issued by Landmark to AAE (one of the underlying defendants), because (1) the allegations of the underlying complaint do not arise out of a negligent act, error or omission in the rendering or failure to render professional services (they arise out of dispute between competing businesses); (2) even if the rendering or failure to render professional services had been alleged, no professional services were rendered on behalf of the named insured AAE (they were rendered on behalf of BES or some other entity/individual), and (3) the Policy's exclusion for claims arising out of "Dishonest, fraudulent, criminal or intentional acts" bars coverage for the underlying claims. Therefore, Landmark has no duty to defend or indemnify AAE or the other individuals named in the underlying lawsuit for the allegations made in that suit.ECF No. 49 at 2.
Furthermore, the underlying count for a temporary restraining order and the allegations seeking punitive/exemplary damages are not covered because those are not damages covered under the Landmark policy. Finally, Defendant Goerling is not a covered person under the Landmark policy because it is not alleged he was ever a principle (sic), partner, officer, director or employee of AAE; instead, he is a former employee of BES, who at some point left BES to open his own business, JDG Engineering, LLC.
Having reviewed the pleadings, Motion, the pro se response of Defendant Clark, and applicable law, the undersigned recommends summary judgment be granted. Defendant Clark's pro se response does not address the insurance-coverage issue at the heart of Landmark's Complaint in this court—whether Landmark has a duty to defend or indemnify any party in the underlying BES litigation. Rather, Clark offers explanation as to his prior role in AAE as its principal architect and, at one time, 15% minority owner of AAE. ECF No. 56 at 1. Clark informs the court that he was not involved in the business arrangement between AAE and BES, and indicates Defendants Jordan and Turkall were the individuals involved in business dealings between AAE and BES. Id. at 1-2. While Defendant Clark offers his own opinion of Jordan's and Turkall's involvement with AAE and BES, Clark does not include facts or legal argument to dispute Landmark's claim that the Policy affords no coverage or defense for the matters raised in the BES Litigation.
Further, Clark was dismissed from the Underlying Action in September 2016. See ECF No. 56-3, htttp://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10002&Casenum=2015CP1006850&CaseType=V (last visited Oct. 20, 2017). Based on that dismissal order, it would seem that any defense Landmark provided Clark has been ended and that there would be no future duty to defend or indemnify Clark for matters relating to the BES Litigation.
With no on-point argument against the declaration Landmark seeks regarding its lack of a duty to defend or indemnify, grant of that Motion is appropriate. Moreover, upon review of the Policy Language and Landmark's legal analysis, the undersigned agrees with Landmark's position and is of the opinion that summary judgment granting Landmark the declaration it seeks is appropriate.
The undersigned has reviewed the answers of Clark and Turkall, ECF Nos. 12, 23, and notes that, through these pleadings, Clark and Turkall do not agree that Landmark is entitled to the declaration it seeks. Neither, though, has provided evidence or cogent legal argument at this summary-judgment stage. It is not the court's place to make arguments for the parties.
Landmark argues the allegations of the BES Litigation do not trigger coverage under the Policy's Insuring Agreement because the allegations do not allege damages arising out of "'a negligent act, error or omission . . . in the rendering or failure to render professional services described in the Declarations . . . .'" Mot. Summ. J. 12 (quoting Policy I.A, available at ECF No. 1-3 at 4). The undersigned agrees. The Declarations Page identifies AAE as the Named Insured and identifies AAE's professional services as "architecture, civil and structural engineering, interior design." Id. at 2.
At bottom, BES's allegations against AAE and others relate to a soured business deal between AAE and BES that also allegedly was impacted by several of the other Defendants. The Underlying Litigation does not concern AAE's rendering of architectural, engineering, or interior-design professional services. Landmark has provided ample legal authority that insurers have the right to restrict professional-liability coverage to claims involving the insured's professional services. ECF No. 49 at 12-13; e.g., S.C. Med. Malpractice Liab. Ins. Joint Underwriting Ass'n v. Ferry, 54 S.E.2d 378, 380 (S.C. 1987) (finding determination of whether an act "arises out of" rendering professional services for insurance-coverage purposes, courts "look not to the title or character of the party performing the act, but to the act itself.").
The Underlying Litigation does not trigger coverage because it seeks redress for claims that are not "Covered Services" pursuant to the Landmark Policy. Summary judgment is appropriate.
Landmark's Motion for Summary Judgment includes an alternative argument related to the Policy's "Exclusion F," which bars coverage for claims arising out of "[d]ishonest, fraudulent, criminal or intentional acts, errors or omissions[.]" Landmark Policy II. F., ECF No. 1-3 at 6. Based on the above recommended finding that the BES Litigation does not include claims arising out of the rendering or failing to render professional services, the court need not further consider that argument, nor does the declaration sought hinge on such an argument. Similarly, the court need not address Landmark's argument that the BES Complaint's requests for injunctive relief and for punitive damages are not covered under the Policy's definition of damages.
C. Motion for Default Judgment (Defendants AAE, Jordan, Goerling), ECF No. 50
1. Standard of review
In considering Landmark's Motion for Default Judgment, the court is to accept as true all well-pled allegations in the Complaint in this matter. The Defaulting Defendants are considered to have conceded the Complaint's factual allegations. See Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). At this juncture, then, the court's inquiry is to be whether "the face of the pleadings supports the default judgment and the causes of action therein." Builders Mut. Ins. Co. v. Carolina Custom Homes of Charleston, Inc., No. 2:14-CV-01261-RMG, 2015 WL 12844443, at *1 (D.S.C. Mar. 26, 2015) (quotation and citation omitted). In Builders Mutual the court considered the pleadings and granted the insurance company plaintiff's motion for default judgment in the form of a declaration of rights under an insurance policy. Id. Similarly, here, Landmark seeks the court's declaration of its rights and obligations based on the facts deemed admitted as to the Defaulting Defendants.
2. Procedural background
Although served, Defaulting Defendants AAE, Jordan, and Goerling did not respond to the Complaint in this matter, and the Clerk of Court entered default against them. ECF Nos. 35, 36. Landmark now seeks default judgment declaring that the Landmark Policy "does not provide [the Defaulting Defendants] coverage for the BES Complaint, and that Landmark has no duty to defend or indemnify them for the BES Complaint." ECF No. 50. None of the Defaulting Defendants has responded to the Motion for Default Judgment, despite the court's August 7, 2017 Order advising them of the importance of the Motion for Default Judgment and the need for them to respond. ECF No. 65. Defaulting Defendants were advised that, because the judgment sought is not monetary in nature, Landmark's requested declaratory judgment could be entered without a hearing. Id. at 1. Defaulting Defendants were then afforded additional time—until September 5, 2017—to submit responses to the action and the Motion for Default Judgment. Id. at 1-2. AAE, Jordan, and Goerling were advised that if they did not provide an adequate response by September 5, 2017, "Plaintiff's motion may be granted, thereby providing Landmark with the declaration it seeks." Id. at 2. Defendant AAE, a corporation, was further advised that it could appear only through counsel and that if it did not appear through counsel by September 5, 2017, it would be recommended that default judgment be entered for that reason, as well. Id. at 2-3.
Despite these warnings, none of the Defaulting Defendants has entered an appearance in this matter or otherwise communicated with the court regarding this matter or the pending Motion for Default Judgment. Accordingly, the undersigned has reviewed Landmark's well-pleaded factual allegations in its Complaint as true and recommends Landmark be afforded the declarations it seeks. See DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322 n.2 (4th Cir. 2008) (accepting plaintiff's allegations against defaulting defendant as true, noting a defaulting defendant "'admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.'") (quoting Ryan, 253 F.3d at 780.)).
3. Analysis
a) Defaulting Defendant Goerling
Section I, E, of the Policy identifies "Covered Persons" as including Named Insureds and "Any present or former principal, officer, director, or employee of the Named Insured [AAE], but only as respects professional services rendered on behalf of the Named Insured [AAE]." ECF No. 1-3 at 5. Goerling is not a named insured on the Policy's Declarations. ECF No. 1-3 at 2. The BES Complaint does not allege that Goerling has ever been a principal, officer, director or employee of AAE. Accordingly, it is recommended that default judgment be entered against Goerling holding that Landmark has no duty to defend or indemnify Goerling with regards to the BES Litigation.
b) Defaulting Defendants AAE and Jordan
In seeking default judgment against AAE and Jordan, Landmark's coverage argument mirrors that in its Motion for Summary Judgment—that the allegations of the BES Litigation do not trigger coverage under the Policy's Insuring Agreement because the allegations do not allege damages arising out of "a negligent act, error or omission in the rendering or failure to render professional services described in the Declarations on behalf of AAE." Mot. Default 10. For the reasons set out above, the undersigned agrees and recommends that default judgment be entered against AAE and Jordan holding that Landmark has no duty to defend or indemnify them with regards to the BES Litigation.
As with its Motion for Default Judgment, Landmark's Motion for Summary Judgment includes additional arguments that no duty to defend or indemnify is owed. Again, those arguments need not be reached in this Report.
Further, as noted above, Defendants AAE, Goerling, and Jordan failed to respond to the court's Order requiring a response, making entry of default judgment appropriate as to AAE, Goerling, and Jordan based on their failure to participate in this litigation and failure to respond to the court's orders. IV. Conclusion
The undersigned recommends that Plaintiff's Motion for Default Judgment as to Defendants Accord Architects and Engineers, LLC; Bradley C. Jordan; and Jonathan D. Goerling, ECF No. 50; and Motion for Summary Judgment, ECF No. 49, be granted. If this Report is adopted and these Motions are granted, the following declaration is appropriate:
Plaintiff Landmark Insurance Company does not have any duty either to provide Defendants Accord Architects & Engineers, LLC; Bret Allan Turkall; Bradley C. Jordan; Christopher R. Clark; or Jonathan D. Goerling with a defense in the BES litigation or to indemnify these Defendants for any judgment in the BES litigation.
In its Complaint, Landmark also seeks the court's declaration that BES "is bound" by the declarations the court makes concerning coverage. Landmark's Motions do not address that portion of the Complaint's sought declarations, nor is the issue of BES's involvement as a party-Defendant herein discussed by any party. Nonetheless, absent compelling argument to the contrary, the undersigned is of the opinion that such an express declaration concerning BES's being bound is unnecessary and that the recommended resolution of Landmark's Motions for Default Judgment and for Summary Judgment, if adopted, would end this matter with prejudice as to all parties. --------
The Clerk is instructed to send this Report to all pro se parties at the address available to the court via U.S. Mail and certified mail.
IT IS SO RECOMMENDED. October 20, 2017
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge