Opinion
7:23-CV-01178-D
02-07-2024
MARIAN ELIZABETH DUBAR d/b/a MARIAN ELIZABETH DUBAR ESTATE LIVING 28 TRUST, Plaintiff, v. CHRISTOPHER M. BROWN d/b/a CMB LELAND STATION LLC, 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 application [DE-2] and amended application [DE-5] (the “IFP applications”) by plaintiff Marian Elizabeth Dubar (“Ms. Dubar” or “plaintiff”),a woman d/b/a Marian Elizabeth Dubar Estate Living 28 Trust, to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively. This matter is also before the court on the motion by defendant Christopher M. Brown (“Mr. Brown”), d/b/a CMB Leland [Storage] LLC (“Leland Storage”),,to dismiss [DE-7] plaintiff's complaint pursuant to Rule 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. [DE-7] at 2. Plaintiff did not file a response to the motion to dismiss, the time within which to do so has expired, and the motion is ripe for adjudication. The motions were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1).
Ms. Dubar has filed numerous pro se lawsuits in this district, see, e.g., Dubar v. Ditech Fin. LLC, 7:17-cv-00058-BR; Dubar v. Ditech Fin. LLC, No. 7:19-CV-16-BO, 2019 WL 1440327, at *2 (E.D. N.C. Mar. 6, 2019), report and recommendation adopted, No. 7:19-CV-16-BO, 2019 WL 1442198 (E.D. N.C. Mar. 29, 2019); Dubar v. Ditech Financial LLC, 7:19-cv-00096-H; Dubar v. Wells Fargo Bank N.A., No. 7:21-CV-13-M, 2021 WL 6101597, at *1 (E.D. N.C. Feb. 26, 2021), report and recommendation adopted, No. 7:21-CV-00013-M, 2021 WL 6101596 (E.D. N.C. Apr. 8, 2021); Dubar v. Brody et al, 7:23-cv-01179-D-BM; Dubar v. Hanks et al, 7:23-cv-01631-BO-RJ.
Plaintiff additionally names Scott Beatty d/b/a Absolute Self Management LLC and James M. Brogdon d/b/a Simmons Bank as defendants.
Defendant Christopher M. Brown d/b/a CMB Leland Storage, LLC, notes in his motion to dismiss that Plaintiff incorrectly refers to his trade name as “CMB Leland Station LLC” rather than as its actual name “CMB Leland Storage LLC.” [DE-7] at 1.
As discussed below, 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 [DE-5] will be ALLOWED and the original application to proceed in forma pauperis [DE-2] will be DENIED AS MOOT. However, for the reasons set forth below, it is RECOMMENDED that Leland Storage's motion to dismiss [DE-7] be GRANTED and that plaintiff's complaint be DISMISSED in its entirety for lack of subject matter jurisdiction.
ORDER ON IN FORMA PAUPERIS MOTIONS
To qualify for in forma pauperis status, a person must show that she “cannot because of [her] poverty pay or give security for the costs . . . and still be able to provide [her]self 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 IFP applications. [DE-2, -5]. Plaintiff reports $6,000 of average monthly income over the last twelve months, compared to only $788 in estimated monthly expenses. [DE-5] at 1-2. However, over one-third of plaintiff's reported monthly income is public assistance and plaintiff states that she has $10 in savings. Id. at 2. Furthermore, plaintiff's estimated income for the next month is only $600, which is lower than her monthly expenses. Id. at 2, 4. Accordingly, the undersigned finds that plaintiff has adequately demonstrated her inability to prepay the required court costs. Her amended application to proceed in forma pauperis [DE-5] is therefore ALLOWED, and, in light of this ruling, her original application to proceed in forma pauperis [DE-2] is DENIED AS MOOT.
MEMORANDUM AND RECOMMENDATION
I. BACKGROUND AND CLAIMS
Plaintiff's complaint [DE-1] is difficult to follow. It is accompanied by various exhibits, ostensibly filed in support thereof, including: a Petition for Removal of Nonage; plaintiff's birth certificate; a copy of a Promissory Note executed by plaintiff; a Storage Space Rental Agreement; 1099-C tax forms; a UCC financing statement; and copies of correspondence ostensibly between plaintiff and various defendants. See [DE-1-1, to -1-13]. Plaintiff begins her complaint by alleging that “[t]he contract provide[d] by [Leland Storage] is not the proper contract for the 2 rental spaces #312 and #313.” Compl. [DE-1] at 1. It is not entirely clear why plaintiff alleges that her contract for the rental spaces is invalid. However, plaintiff appears to suggest that her contract should have been updated when a new management company, Absolute Storage Management LLC (“Absolute Storage”), took over the management of her units. Compl. [DE-1] at 1 (“When Absolute Storage Management LLC became New Management. The records was [sic] left as they were as under old management with no revisions”); see also [DE-1-5] (Storage Space Rental Agreement for “112” between Ms. Dubar and Leland Self Storage, which appears to have been executed by both Ms. Dubar and a representative of Leland Storage).
Plaintiff's primary contention is that in February 2023 after tendering “Promissory Notes/Debt Securities” to Scott Beatty, the CEO of Absolute Storage, this amount was never credited to her Leland Storage account. Compl. [DE-1] at 1. While a representative from Absolute Storage sent “an email about an option[] of an agreement for not paying,” defendants allegedly never recognized plaintiff's assertion that “the proper tender in the form of the Promissory Notes/Debt Securities was provided.” Id.; see also [DE-1-9] (email from Melissa Halcomb at Absolute Storage regarding buy-out option).
In April 2023, plaintiff received an email “threatening to move forward with an auction” of plaintiff's possessions that were in the possession of defendants at their storage facility. Id. Plaintiff's property from the storage facility was never returned to her and appears to have been auctioned or subject to auction to satisfy her debt, which plaintiff alleges is “theft, trespass and embezzlement.” Id. at 2. Plaintiff seeks compensation of $4,100,000. Id. at 1.
II. APPLICABLE LEGAL STANDARDS
A. 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 also Denton v. Hernandez, 504 U.S. 25, 27 (1992). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff'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 plaintiff'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. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Criminal 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) and (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 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements ofa 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 (2007) (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”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of 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 situations 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, 336 (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 plaintiff, 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. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). There are also statutes conferring jurisdiction for particular types of cases.
B. Rule 12(b)(1) - Lack of subject matter jurisdiction
Rule 12(b)(1) provides for dismissal of an action if the court lacks subject matter jurisdiction over it. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of showing federal jurisdiction on a Rule 12(b)(1) motion. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Bio-Medical Applications of N.C, Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D. N.C. 2006). “The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case.” Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012) (citing Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999)).
The court's standard for review of a motion filed pursuant to Rule 12(b)(1) depends on the nature of the movant's challenge to subject matter jurisdiction. There are two ways a defendant can challenge subject matter jurisdiction under Rule 12(b)(1): “he may either assert (1) a facial challenge that the allegations pled in the complaint are not sufficient to establish subject matter jurisdiction; or (2) a factual challenge that the allegations establishing jurisdiction are not true.” Chong Su Yi v. Soc. Sec. Admin., 80 F.Supp.3d 666, 669 (D. Md. 2015) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). If the argument claims that the complaint fails to allege sufficient facts conferring subject matter jurisdiction, the court must assume all facts alleged in the complaint to be true and “and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams, 697 F.2d at 1219; see also Kimble v. Rajpal, 566 Fed.Appx. 261, 262 (4th Cir. 2014) (noting that where defendant raises a “facial challenge” to the jurisdictional allegations, “the court must evaluate the complaint in the same manner utilized in assessing a motion to dismiss for failure to state a claim-that is, viewing the well-pleaded facts in the complaint as true”). The court may consider any documents attached to the complaint in its analysis. Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 Fed.Appx. 677, 679 n.* (4th Cir. Jan. 8, 2014), cert. denied, 573 U.S. 948, 134 S.Ct. 2886 (2014); see also Fed.R.Civ.P. 10(c). Alternatively, if the movant contests the accuracy of the plaintiff's jurisdictional allegations, the court must treat the allegations of the complaint as mere evidence and may consider matters beyond the pleadings without converting the motion to one for summary judgment. Richmond, 945 F.2d at 768; see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject matter] jurisdiction.”). Additionally, under Rule 12 of the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Here, the court construes the motion to dismiss ([DE-7] at 4-7) as alleging that the complaint fails to allege sufficient facts conferring subject matter jurisdiction. The undersigned, therefore, assumes all facts alleged in the complaint to be true and “and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams, 697 F.2d at 1219.
III. ANALYSIS
Leland Storage argues that plaintiff's complaint should be dismissed because: (1) plaintiff “has not met her burden to establish subject matter jurisdiction because her complaint lacks any allegations about the parties' citizenship ([DE-7] at 4); (2) plaintiff's “complaint does not provide fair notice of any cognizable legal claim” (id. at 8); and (3) “[p]laintiff's [c]omplaint contains no allegations about service, including how and where Leland Storage (and the other defendants) can be properly served” (id. at 12). As discussed below, the undersigned finds that there is no demonstrated federal jurisdictional basis for plaintiff's action against defendants. It should accordingly be dismissed.
It is the general practice of this court that for plaintiffs, who are granted in forma pauperis status and survive a frivolity review, the judge will direct the “clerk to forward the summons and complaint to the United States Marshals Service to serve each defendant.” United States District Court - Eastern District of North Carolina, Representing Yourself in a Civil Case: A Guide for the Pro Se Litigant 11-12 (December 2023). As plaintiff's complaint was subject to the instant frivolity review, Leland Storage's argument of insufficient service of process under 12(b)(5) is premature. Moreover, in light of the undersigned's recommendation for the court to dismiss plaintiff's complaint as discussed below, any arguments based on plaintiff's alleged service of process deficiencies, including any attempts plaintiff may have made to serve defendants directly, are moot.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain, inter alia, “a short and plain statement of the grounds for the court's jurisdiction . . .” Fed.R.Civ.P. 8(a)(1). Similar to other claims plaintiff has filed in this district, plaintiff's complaint [DE-1] does not provide any basis for this court's jurisdiction. See, e.g., Dubar v. Ditech Fin. LLC, No. 7:19-CV-16-BO, 2019 WL 1440327, at *2 (E.D. N.C. Mar. 6, 2019), report and recommendation adopted, No. 7:19-CV-16-BO, 2019 WL 1442198 (E.D. N.C. Mar. 29, 2019) (“Plaintiffs complaint fails to demonstrate federal question jurisdiction”); Dubar v. Ditech Fin. LLC, 7:17-cv-00058-BR (“In her complaint, plaintiff asserts that this court has federal question jurisdiction . . . [but] did not provide any statutory basis or other explanation for this assertion.”).
On her civil cover sheet, plaintiff selects federal question as the basis for jurisdiction, but nowhere in her complaint does she provide any statutory basis or other support for federal question jurisdiction under 28 U.S.C. § 1331. See Civ. Cover Sheet § II (selecting the box for “Federal Question,” but not for “Diversity” as the basis for jurisdiction). Plaintiff's complaint alleges state law torts and possibly a contract cause of action. See generally Compl. [DE-1]. Neither such tort nor contract claims confer federal jurisdiction. See, e.g., Schmier v. Fayetteville Pub. Works Comm'n, No. 5:18-CV-50-FL, 2018 WL 1662105, at *1 (E.D. N.C. Apr. 5, 2018) (holding that state tort law claims do not implicate federal question jurisdiction); Blackstock v. Miller, No. 4:18-CV-56-RBH-KDW, 2018 WL 1054819, at *2 (D.S.C. Jan. 29, 2018), rep. & recomm. adopted, 2018 WL 1036181 (Feb. 21, 2018) (“Plaintiffs Complaint involves a routine intentional tort/personal injury dispute. Generally, such disputes are a matter of state law to be heard in the state courts, unless diversity of citizenship is present.”); Ferebee v. Jeanett P. Henry, LLC, No. CV PWG-17-1397, 2017 WL 2812803, at *2 (D. Md. June 28, 2017) (holding that plaintiff's claims did not “state a jurisdictional basis for a federal question claim under this Court's federal question jurisdiction” and that “[a]t best, [plaintiff's] cause of action alleges nothing more than tortious conduct or breach of contract on the part of Defendant”); Bakra v. Tates Publ'g, No. 6:16-CV-00051, 2016 WL 4926214, at *2 (W.D. Va. Sept. 15, 2016) (finding on frivolity review that “no federal question jurisdiction exists for the contract claim”); McPhail v. Wells Fargo Dealer Servs., No. 5:13-CV-645-BO, 2013 WL 6839657, at *1 (E.D. N.C. Dec. 23, 2013) (adopting recommendation that plaintiff's claims for breach of contract, negligent misrepresentation, and fraud arose under state law and did not state an independent federal question).
While plaintiff alleges in her complaint that her claim involves “a tax situation” (Compl. [DE-1] at 2), she does not relate this to any statute, nor does she allege any conduct by defendants that could be construed as a tax claim against them. The complaint therefore does not show that she is attempting to assert a statutory claim under tax law. Further, although there is a federal tax code, the Internal Revenue Code of 1986 (the “IRC”), there are also North Carolina state counterparts, including N.C. G.S. Chapter 105. To the extent that plaintiff is deemed to be asserting a statutory claim under tax law, the court will not infer that she is relying on the IRC. To do so would eviscerate the requirement that the basis for federal jurisdiction be affirmatively alleged. Accordingly, the undersigned finds that plaintiff has failed to present any federal question. See 28 U.S.C. § 1331.
Plaintiff has not affirmatively alleged diversity jurisdiction in her complaint. As discussed below, to the extent she intended to do so through her filings, Plaintiff has not established the existence of diversity jurisdiction. Plaintiff's filings indicate that both she and at least one defendant are residents of North Carolina. See [DE-14-1] Civ. Cover Sheet § I (indicating that plaintiff is a resident of Columbus County, NC, while Legal Storage is based in Forsyth County, NC). In its motion to dismiss, Leland Storage confirms that Leland Storage is a North Carolina limited liability company with its principal place of business in North Carolina. [DE-7] at 5. “For purposes of diversity jurisdiction, the citizenship of a limited liability company . . . is determined 10 by the citizenship of all of its members.” Cent. W. Virginia Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011). Mr. Brown is Leland Storage's sole member and represents that he is a citizen of North Carolina. [DE-7] at 5. Accordingly, Mr. Brown and Leland Storage are domiciled in North Carolina for purposes of diversity jurisdiction.
Ms. Dubar represents that she was born in North Carolina [DE-1-2] and currently resides in North Carolina. See [DE-14-1] Civ. Cover Sheet § I. This suggests but does not conclusively establish that plaintiff is domiciled in North Carolina. See Johnson v. Advance Am., 549 F.3d 932, 937 n. 2 (4th Cir. 2008) (“To be a citizen of a State, a person must be both a citizen of the United States and a domiciliary of that State....Domicile requires physical presence, coupled with an intent to make the State a home.”).
Ms. Dubar brings her claim on behalf of herself, as well as ostensibly in her capacity as a Trustee of Marian Elizabeth Dubar Estate Living 28 Trust. Compl. [DE-1] at 1. “[T]he citizenship of a business trust is determined based on the citizenship of its members, while the citizenship of a traditional trust is based on the citizenship of its trustee.” Richards Bldg. Servs. v. Hegarty, No. 5:21-CV-281-BO, 2022 WL 1143291, at *1 (E.D. N.C. Apr. 18, 2022) (citing Cartwright v. SSC Yanceyville Operating Co., LLC, 2018 WL 6680925, at *4 (M.D. N.C. Dec. 19, 2018)). While the undersigned cannot make a definitive finding on plaintiff's citizenship based on her deficient pleading, to the extent that Ms. Dubar is domiciled in North Carolina, the Marian Elizabeth Dubar Estate Living 28 Trust is also domiciled in North Carolina.
To establish diversity jurisdiction there must be “complete” diversity between parties, which “means that no plaintiff may share a citizenship with any defendant.” Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 352 (4th Cir. 2020) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)). Plaintiff's filings suggest that both she and Leland Storage are domiciled in North Carolina, which would destroy any diversity jurisdiction. Even if these filings were found to be inconclusive on the question of diversity jurisdiction as discussed above, plaintiff has not met her burden of showing that this court has jurisdiction over her claims. See Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) (“[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint.”) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936)); Brissett v. Wells Fargo Bank, N.A., No. 4:17-CV-114-FL, 2017 WL 6368667, at *2 (E.D. N.C. Dec. 13, 2017) (dismissing claim for lack of subject matter jurisdiction on frivolity where complaint did not adequately plead that parties were citizens of different states); Juste v. McDonald Rest. Corp., No. 3:15-CV-54, 2015 WL 3939669, at *6 (N.D. W.Va. June 5, 2015), rep. & recomm. adopted, 2015 WL 3939669, at *1 (June 26, 2015) (recommending dismissal of claim on frivolity review, noting “[t]he burden is on Plaintiff, as the party seeking to invoke the jurisdiction of the federal court, to establish domicile for the purposes of diversity jurisdiction”); Sheridan v. Reidell, 465 F.Supp.2d 528, 535 (D.S.C. 2006) (dismissing for lack of diversity jurisdiction where “the Complaint does not allege facts from which the court could determine the state of Plaintiff's citizenship”); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001) (“Since the party asserting diversity jurisdiction bears the burden of proof, . . ., [Defendant's] failure to specify Plaintiffs' state citizenship was fatal to Defendants' assertion of diversity jurisdiction”).
Accordingly, as plaintiff has failed to effectively allege either federal question or diversity jurisdiction, this court does not have subject matter jurisdiction to consider this case. Given the lack of federal jurisdiction, the court expresses no opinion on whether, if jurisdiction existed, plaintiff's claim would survive further evaluation for frivolity.
IV. CONCLUSION
For the reasons stated above, the amended application to proceed in forma pauperis [DE-5] is ALLOWED and the original application to proceed in forma pauperis [DE-2] is DENIED AS MOOT. However, for the reasons set forth above, it is RECOMMENDED that Leland Storage's motion to dismiss [DE-7] be GRANTED and that plaintiff's complaint [DE-1] be DISMISSED in its entirety for lack of jurisdiction.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until February 22, 2024, to file written objections to the 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. Any response to objections shall be filed by the earlier of (i) 14 days from the filing of the objections, or (ii) February 28, 2024.
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 the party 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).