Opinion
C. A. 18-3278-SAL-SVH
11-17-2021
Rollins Ranches, LLC and British Gundogs, LLC, Plaintiffs, v. Rachael Watson, also known as Rachael Corbett, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This matter comes before the court on the filings of Rollins Ranches, LLC (“Rollins”), and Rollins' subsidiary British Gundogs, LLC (collectively “Plaintiffs”), on December 30, 2020, providing the court with Plaintiffs' best estimate of damages based on the existing record, which the court construes as Plaintiffs' motion for default judgment as to Rachel Watson, also known as Rachael Corbett (“Defendant”). [ECF No. 64]. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(i)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motion for default judgment is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court deny the motion and dismiss the complaint without prejudice for failure to state a claim. 1
I. Factual and Procedural Background
Plaintiffs originally filed this action against Defendant, who is proceeding pro se, on December 5, 2018, bringing claims for defamation, tortious interference with existing and prospective business relationships, and civil conspiracy, and seeking damages and injunctive relief. [See ECF No. 1].
More specifically, Plaintiffs allege they operate a dog breeding and training operation known as “British Gundogs.” Id. ¶ 6. Plaintiffs allege that Defendant is married to Robin Watson (“Watson”), and from August 2014 until December 2, 2016, Watson was employed as managing director of Plaintiffs' British Gundogs operations at a ranch in Osceola County, Florida. Id. ¶ 7. Defendant lived with Watson at housing provided by him, as a benefit of his 2 employment, until Defendant and Watson left the property around December 2, 2016. Id. ¶ 8.
The current legal dispute is not the first between these parties. On May 31, 2017, Defendant brought claims against Rollins in the Southern District of Florida pursuant to Fair Labor Standards Act, 29 U.S.C. § 201 et seq., seeking unpaid wages and liquidated damages. Watson v. Rollins Ranches, C/A No. 2:17-14193-SMM (S.D. Fla. 2017). In that case, following various discovery disputes, the parties filed a joint motion for settlement approval, which was approved on February 1, 2018. Additionally, Defendant and Watson are judgment debtors on three judgments owed to Rollins on contract obligations in Florida in amounts exceeding $100,000. [See ECF No. 42 at 4 n.2 (citing ECF No. 42-6)]. The court takes judicial notice of these actions. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
Since a date in or before March 2017, Defendant and Watson have operated a dog breeding and training operation known as Tibea Gundogs from Lancaster County, South Carolina. Id. ¶ 9. Plaintiffs further allege that since at least March 2017, Defendant has published statements intentionally targeted to persons in the dog training and breeding industry, including written statements regarding Plaintiffs that are defamatory per se, tending to reduce Plaintiffs' character or reputation in the estimation of the public and, particularly, the dog breeding and training community, disgracing Plaintiffs or rendering them odious, contemptible, or ridiculous in the estimation of the public and that dog breeding and training community, deterring others from associating or dealing with Plaintiffs. Id. ¶ 10.
According to Plaintiffs, Defendant and Watson, in late 2018, left their South Carolina residence and moved their Tibea Gundogs operations to Guilford County, North Carolina. [ECF No. 19 at 1].
For example, on or around March 14, 2017, Defendant published statements to third parties on a Facebook page with which she and Watson are associated in which she falsely accused Plaintiffs and their owners or agents of “illegal practices, ” “break[ing] the law, ” operating or owning a “slave camp” or “prison camp, ” and being “evil people, ” further stating “don[‘]t [] send dogs to 3 be fried on an e collar by assholes there.” Id. ¶ 6 (citing ECF No. 1-1). Plaintiffs allege these statements were published by Defendant on the Facebook page operated by Defendant and Watson, published to over 1, 500 Facebook “followers, ” including Plaintiffs' clients, prospective clients or customers, suppliers and business associates. Id. ¶ 12.
Although not substantially, some of the words alleged by Plaintiffs to have been stated Defendant, as found in Plaintiffs' complaint, differ from the words stated by Defendant in the exhibits attached to the complaint, which consist of copies that appear to be from Defendant's Facebook page. Courts may consider exhibits attached to the complaint. Anheuser-Busch v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995) (citing 5A Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (1990). Where a conflict exists between “the bare allegations of the complaint and any attached exhibit . . ., the exhibit prevails.” Fayetteville Investors v. Commercial Builders. Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)). As such, the court will refer to the words used in the exhibits.
Plaintiffs further allege that again, on or around March 27, 2017, Defendant published written statements on Watson and her Facebook page warning their Facebook followers and the public interested in dog breeding and training (“our field trialing friends, judges and dog trainers”) considering job opportunities in the USA (i.e., Plaintiffs' efforts to recruit a trainer to replace Watson) to “call us first, ” accusing Plaintiffs' agents of “lies.” Id. ¶ 13 (citing ECF No. 1-2). Plaintiffs allege Defendant's March 27, 2017 defamation was directed to at least one prospective candidate for the British Gundogs job, 4 Kristy Cousins, who Defendant advised should “be very wary.” Id. ¶ 14 (citing ECF No. 1-2).
Plaintiffs allege Defendant followed her March 27, 2017 Facebook defamation with an additional post on that same Facebook page, published to the dog breeding and training community, accusing Plaintiffs of operating a “slave camp.” Id. ¶ 15 (citing ECF No. 1-2).
Plaintiffs allege that on or around May 25, 2017, in another Facebook post, Defendant falsely accused Plaintiffs or their agents as follows:
Must admit that people's greed for money is incredulous. Horrified to hear that a big corporation to make more money, tried to [artificially inseminate] a nine year old gun shy bitch who had never had a litter before. Thankfully for the poor bitch she was not able to be Artificially inseminated as []they did not know she had a pyometra. Poor poor girl all to fulfil their greed. Credibility for this corporation is nonexistent.Id. ¶ 16 (citing ECF No. 1-3). Plaintiffs allege this false written statement was defamatory per se, tending to reduce Plaintiffs' character or reputation in the estimation of the public and, particularly, the dog breeding and training community, disgracing Plaintiffs or rendering them odious, contemptible or ridiculous in the estimation of the public and that community, and deterring others from associating or dealing with Plaintiffs. Id. This false written statement was broadcast on Defendant and Watson's Facebook page and 5 published to over 1, 500 Facebook “followers, ” including Plaintiffs' clients, prospective clients or customers, suppliers and business associates. Id. ¶ 16.
Plaintiffs allege that on or around September 17, 2017, as a means to hide her defamation and interference with Plaintiffs' prospective business relations, Defendant, alone or in conspiracy with Watson, took steps to “close” their Tibea Gundogs Facebook page, making it accessible to their 1, 500 or more Facebook followers, many of whom are still in the same dog breeding and training community, but hiding Defendant's defamatory statements and interference with Plaintiffs' prospective business relations from direct scrutiny by Plaintiffs or their agents. Id. ¶ 17 (citing ECF No. 1-4).
Plaintiffs allege Defendant's statements damaged them and are defamatory per se, and that, on information and belief, Defendant has on other occasions since at least March 2017, whether by written publication on Facebook or other social media, by electronic mail, or orally in person or via telephone communications, slandered or libeled Rollins, Rollins' subsidiary British Gundogs, their owners, employees, and agents. Id. ¶¶ 18-19. 6
Plaintiffs state in their complaint that this information and belief will likely have evidentiary support after a reasonable opportunity for discovery, including recovery of the aforementioned closed Tibea Gundogs Facebook page and social media and electronic mail communications with their Facebook followers and others in the dog breeding and training community. [See ECF No. 1 ¶ 20].
Plaintiffs allege Defendant, alone or in conspiracy with Watson, interfered with Plaintiffs' contract with James McKenzie (“McKenzie”), d/b/a Colmorg Kennels British Labradors, relating to the naming and breeding of a dog, “Brandy, ” causing Plaintiffs special damages. Id. ¶ 21. Plaintiffs allege Defendant, a stranger to Plaintiffs' prospective business relationships in the dog breeding and training business, through the improper means of her defamatory statements, has as her predominate and improper purpose, intentionally interfered with Plaintiffs' potential or prospective contract relations with third parties who are either breeders or trainers who would otherwise do business with British Gundogs, or are prospective customers for Plaintiffs' services or dog sales. Id. ¶ 22.
Plaintiffs further allege Defendant, individually or in combination with Watson, intentionally interfered with Plaintiffs' existing and prospective business relationships with the American Kennel Club (the “AKC”), whose registration and certification of litters is crucial to Plaintiffs' sale of dogs bred, trained and sold by British Gundogs. Id. ¶ 23. Further, Plaintiffs allege Defendant, by improper means, in combination with Watson, interfered with Plaintiffs' registration of litter SR946222 by misrepresenting Defendant's entry of Watson's signature, with his authority, on AKC registration 7 documents, causing Plaintiffs special damages, including payments made to Watson and diminished litter value. Id. ¶ 24.
Plaintiffs also allege Defendant, by improper means, in combination with Watson, interfered with Plaintiffs' existing and prospective business relationships with The Orvis Company, Inc. (“Orvis”), whose marketing, including its Orvis-endorsed breeding program, is a significant and valuable business relationship to Plaintiffs. Id. ¶ 25. Additionally, Plaintiffs allege Defendant, a stranger to Plaintiffs' business relationship with Orvis, conspired with Watson to make false and defamatory complaints to Orvis regarding the operations of British Gundogs, including Watson's false telephone report to Orvis on or around June 9, 2017, using a pseudonym, and a written defamatory report, in January 2017, using the pseudonym “JMkess.” Id. ¶ 26.
Plaintiffs allege Defendant, a stranger to Plaintiffs' business relationships with The Kennel Club, the United Kingdom's version of the AKC, conspired with Watson to make false and defamatory complaints to The Kennel Club regarding Kennel Club registration of Plaintiffs' dogs, causing Plaintiffs special damages. Id. ¶ 27. Plaintiffs allege Defendant, by improper means and for improper purposes, in combination with Watson, interfered with Plaintiffs' prospective business relationships with additional third parties involved in the dog breeding and training business, causing Plaintiffs injury. Id. ¶ 28. 8 Plaintiffs allege, on information and belief, this interference, in combination with Watson, interfered with Plaintiffs' prospective business relations with Kristy Cousins, Mike Stinson, Matt Neal, Richard King, Neal Duncan, and Matty Lebden. Id
Plaintiffs state the evidence supporting this belief will likely be established after reasonable opportunity for discovery. [See ECF No. 1 ¶ 28 (“For example, on information and belief, Defendant, alone or in combination with Robin Watson, interfered with Plaintiffs' efforts to employ Matt Neal and Richard King to manage the British Gundog operations.”)].
Plaintiffs served Defendant with the summons and complaint on March 9, 2019. [ECF No. 10]. Defendant failed to timely file an answer. Plaintiffs requested an entry of default on April 23, 2019, which the Clerk of Court entered on the same day. [ECF Nos. 13, 14]. On May 29, 2019, Plaintiffs sought, and the court granted, leave for Plaintiffs to engage in post-judgment discovery to establish the extent of damage they suffered as a result of Defendant's actions. [ECF Nos. 16, 17]. More specifically, the court provided Plaintiffs with a 90-day discovery window to determine their damages, commencing June 20, 2019. [ECF Nos. 16, 17]. This discovery has been protracted, contentious, and seemingly not productive.
Plaintiffs served on Defendant requests for production that sought, among other things, access to Defendant's social media accounts' electronically-stored information (“ESI”), electronic mail communications, 9 records of telephone communications, and bank account records. [ECF No. 191]. Plaintiffs argued they needed this information to “identify the persons in the dog breeding and training community with whom Defendant has communicated” to determine who “Plaintiffs' counsel could interview and, if appropriate, subpoena for deposition to discover evidence to establish the damage Plaintiffs have suffered as a result of Defendant's admitted, and continuing, defamation and tortious interference.” [ECF No. 19 at 2].
On September 3, 2019, Plaintiffs filed their first motion to compel discovery responses, arguing Defendant failed to respond to Plaintiffs' discovery requests and the time to do so expired on August 26, 2019. Id. In her first filing to the court, Defendant filed an opposition to Plaintiffs' motion, stating in part that she was in receipt of Plaintiffs' discovery requests and had attempted to produce some of the discovery they requested. [ECF No. 20]. The court issued an order directing the parties to confer and inform the court through a status report as to any resolution of the motion. [ECF No. 22]. The parties failed to provide a status report, and Plaintiffs' motion to compel was dismissed without prejudice. [ECF No. 24]. 10
Plaintiffs argue no status report was filed because of Defendant's refusal to participate in Plaintiffs' efforts to resolve the dispute, including her failure to respond to a telephone call made by Plaintiffs on October 14, 2019. [See ECF No. 28 at 1].
On October 23 and 28, 2019, Defendant filed letters with the court stating in part she had not given permission for Plaintiffs to contact her by email and that she wanted their communication to stop, attaching to her letter an email sent by Plaintiffs on October 22, 2019, informing Defendant that the documents she had provided were not responsive to their discovery requests and directing her to the requests that remained outstanding. [See ECF No. 26, ECF No. 27, ECF No. 27-1].
On November 7, 2019, Plaintiffs filed a renewed motion to compel discovery responses, which Defendant opposed, filing both an opposition and surreply to Plaintiffs' reply, filed December 2, 2019, and December 19, 2019, respectively. [ECF Nos. 28, 29, 30, 31]. On January 10, 2020, the instant case was reassigned to the Honorable U.S. District Judge Sherri A. Lydon. [ECF No. 32].
On April 16, 2020, the case, including Plaintiffs' renewed and still outstanding motion to compel, was referred to the undersigned. [ECF No. 35]. On April 20, 2020, the undersigned issued an order directing Defendant to inform the court of the identity of an attorney she had retained to represent her in this case or, alternatively, of her desire to continue pro se. [ECF No. 39]. In this order, Defendant was specifically advised that, if no attorney is obtained to represent her interests, she would be expected to comply with all 11 provisions of the Federal Rules of Civil Procedure, the court could not provide her with legal advice, and failure to comply with court rules could have serious consequences including, but not limited to, striking a defense, striking a pleading, and/or entering a default judgment against the party. See id. The court additionally noted that default had been entered and Defendant had not moved to set aside this entry of default. See id.
The court received no response from Defendant. On May 22, 2020, the court granted Plaintiffs' renewed motion to compel, directing Defendant to produce responsive documents to Plaintiffs' discovery requests no later than June 5, 2020, and directing Plaintiffs to submit a status report concerning Defendant's production no later than June 6, 2020. [ECF No. 39].
Defendant later represented to the court that she did not receive the court's order. [See ECF No. 41 at 1].
On July 7, 2020, 46 days from the date of the court's order, Plaintiffs filed a motion for contempt, sanctions, and to compel compliance with the court's May 22, 2020 order, arguing Defendant has failed to “produce responsive records, including electronic access to social media accounts, including the Watson's Tibea Gundogs Facebook account.” [ECF No. 42 at 2]. On August 20, 2020, the court denied Plaintiffs' motion without prejudice for renewal should Defendant's actions warrant such a filing, further directing Plaintiffs to submit 12 to the court an affidavit detailing the specific discovery Plaintiffs have received and what specific discovery remained outstanding. [ECF No. 48].
The court additional strongly advised Defendant to retain counsel licensed to practice in the District of South Carolina, in part due to Defendant's repeated attempts to rely on advice rendered by foreign solicitors in filings presented to this court by Defendant. [See ECF No. 48 at 4].
Following receipt of Plaintiffs' affidavit evidence and further status updates, the court directed Plaintiffs to file their best estimate of damages based on the existing record, notwithstanding Plaintiffs' representations that Defendant had repeatedly refused to comply with the court's May 22, 2020 order. [See ECF Nos. 50, 51, 53, 54, 56, 57, 60].
During this time period, Defendant filed a letter with the court, indicating she has produced more discovery than stated by Plaintiffs. [See ECF No. 63].
On December 30, 2020, Plaintiffs filed their estimate, which, as stated above, the court construes as Plaintiffs' motion for entry of default judgment. [See ECF No. 64]. Plaintiffs argue as follows:
Plaintiffs estimate their general and special damages, absent discovery of Defendant's communications to the “British Gundogs” community and further investigation, at between $85,000 and $135,000. Plaintiffs have incurred an additional $22,441.99 in attorney fees and costs as a direct result of Defendant's bad faith, post-default litigation conduct, much of it in contempt of the Court's discovery orders. For these reasons, Plaintiffs request that the Court enter a monetary judgment against Defendant Mrs. Corbett in the amount of at least $107,441.99.13 [ECF No. 64 at 5]. Plaintiffs also submit in support a declaration of Jeremy Criscoe (“Criscoe”), director of training and head trainer at Blue Cypress Kennels, British Gundogs, LLC. On January 11, 2021, Defendant filed a response, disputing Plaintiffs' allegations. [See ECF No. 65].
II. Discussion
A. Standard of Review
Default having been entered against Defendant, she is deemed to have admitted the factual allegations of the complaint against her. “In determining whether to enter a default judgment, the court must determine whether the well-pleaded allegations in a plaintiff's complaint entitle the plaintiff to the relief sought.” Minnewawa, Inc. v. Stansell, C/A No. 6:16-02712-MGL, 2017 WL 588501, at *1 (D.S.C. Feb. 14, 2017) (citing Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001)). “[A] default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover.” Ryan, 253 F.3d at 780 (citing Nishimatsu Constr. Co. v. Houston Nat'lBank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Consequently, before entering default judgment, the court must evaluate the plaintiff's complaint against the standards of Fed.R.Civ.P. 12(b)(6) to ensure that the complaint properly states a claim. GlobalSantaFe Corp. v. Globalsantafe.com, 250 F.Supp.2d 610, 612 n.3 (E.D. Va. 2003). 14
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
Because Defendant is in default, [ECF No. 14], the allegations in Plaintiffs' complaint against Defendant are deemed admitted. Fed.R.Civ.P. 8(b)(6). Accordingly, the court must first determine whether the well-pleaded allegations in Plaintiffs' complaint entitle Plaintiffs to the relief sought on their claims for defamation, tortious interference, and civil conspiracy, before turning to the issue of damages to be awarded, if any. 15
1. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Malice and damages are presumed in the case where the defamation is actionable per se. See Holtzscheiter, 506 S.E.2d at 502; see also id. (“In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Essentially, all libel is actionable per se.”) (citations omitted).
Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct. The statements at issue here are in the form of libel.
Here, for example, Defendant published statements to third parties on a Facebook page with which she and Watson are associated in which she falsely accused Plaintiffs and their owners and agents of “illegal practices, ” 16 “break[ing] the law, ” being “evil people, ” and operating or owning a “slave camp” or “prison camp, ” warning others to not “send dogs to be fried on an e collar by assholes there.” These statements may constitute a sufficient basis for Plaintiffs' defamation claim. However, the court's inquiry does not end there. See McGlothlin v. Hennelly, 370 F.Supp.3d 603, 614 (D.S.C. 2019) (holding that even though the plaintiff had sufficiently pleaded defamation under South Carolina law, “the court must first consider what limitations the First Amendment's right to free speech places on the reach” of the plaintiff's defamation suit).
A common law defamation claim must also comport with the First Amendment. See Snyder v. Phelps, 580 F.3d 206, 217 (4th Cir. 2009) (“It is well established that tort liability under state law, even in the context of litigation between private parties, is circumscribed by the First Amendment.”). The First Amendment imposes limitations based on the subject of the alleged defamation, as well as the type of speech at issue. Id.
As explained by the Fourth Circuit, even considering speech “targeting private figures, ” as opposed to public figures or public officials:
[T]he [Supreme] Court has recognized that there are constitutional limits on the type of speech to which state tort liability may attach ....Thus, although there is no categorical constitutional defense for statements of “opinion, ” the First Amendment will fully protect “statements that cannot ‘reasonably [be] interpreted as stating actual facts' about an individual.”17 Id. at 218 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). The Fourth Circuit further explained there are two subcategories of speech that cannot reasonably be interpreted as stating actual facts about an individual, and are therefore constitutionally protected: “First, the First Amendment serves to protect statements on matters of public concern that fail to contain a ‘provably false factual connotation, '” and “Second, rhetorical statements employing ‘loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that ‘public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.” Id. at 219-20 (citing Milkovich, 497 U.S. at 20-21). 18
There is no indication that Plaintiffs could be considered public figures, public officials, or limit-purpose public figures. See, e.g., Tharp v. Media Gen., Inc., 987 F.Supp.2d 673, 679 (D.S.C. 2013) (“Public figures, public officials, and limited-purpose public figures may only recover for defamation upon a showing of actual malice by clear and convincing evidence.”).
The undersigned finds that the statements at issue, published on Facebook, involve matters of public concern in that the comments about dog breeders and trainers by members of the same community to members of the same community, as found here, are not subjects of “purely private concern, ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985), but rather are issues of social, political, or other interest to the community. Snyder, 580 F.3d at 220 (citing Kirby v. City of Elizabeth City, N.C. , 388 F.3d 440, 446 (4th Cir. 2004)); see also, e.g., Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1080 (4th Cir. 1987) (“The speech was directed to a small community in which the speaker and the subjects of his speech were personally known by almost everyone. Piver's speech clearly addressed matters of public concern. He spoke out on a matter in which the community of Topsail Beach was vitally interested.”).
Here, the majority of the statements at issue made by Defendant consist of loose, figurative, or hyperbolic language, referencing Plaintiffs' operation as “slave” or “prison” camps, referencing Plaintiffs or their agents as “evil people, ” vaguely accusing Plaintiffs of “lies, ” “illegal practices, ” or “break[ing] the law, ” and, equally vaguely, instructing others to “be very wary” of Plaintiffs or their agents. Likewise, Defendant's direction to not “send dogs to be fried on an e collar by assholes there, ” although implying that Plaintiffs mistreat dogs via e-collars and thus presenting a closer question, still “contain imaginative and hyperbolic rhetoric, ” Snyder, 580 F.3d at 223, evidenced by the use of the verb “fried” as well as the name calling. Additionally, “fried” is a “subjective opinion that cannot be put to objective verification.” Id.; see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993) (“[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”).
Here, “no reasonable reader could interpret any of these [comments] as asserting actual and objectively verifiable facts” about Plaintiffs. Snyder, 580 F.3d at 223; see also Peirce v. Bryant, C/A No. 4:14-2927-BHH-TER, 2016 WL 3035891, at *6 (D.S.C. Mar. 23, 2016) 19 (“Plaintiff's deposition testimony that all of the defendants made defamatory statements to the general public about her being ‘guilty of stuff' is insufficient to establish a defamation claim.”), report and recommendation adopted sub nom. Peirce v. Thompson, C/A No. 4:14-02927-BHH, 2016 WL 3017212 (D.S.C. May 26, 2016); McBride v. Sch. Dist. of Greenville Cty., 698 S.E.2d 845, 851-53 (S.C. Ct. App. 2010) (holding allegation that plaintiff “stole school property” should go to the jury, but that “vague references to the local newscasts concerning [plaintiff's] arrest” were “not specific enough to evaluate” where comments were made about the plaintiff, “her arrest and her [alleged] misconduct” and “one of the accounts attributed comments to unnamed teachers from the School District.”).
Likewise, Plaintiffs' allegations that Defendant made “false and defamatory complaints” to Orvis about the operations of British Gundogs and to the Kennel Club regarding the Kennel Club registration of Plaintiffs' dogs are not specific enough to evaluate.
For similar reasons, the Constitution protects the statement that Defendant was “[h]orrified to hear that a big corporation to make more money, tried [and failed] to [artificially inseminate] a nine year old gun shy bitch .... Credibility for this corporation is non existent.” Although whether Defendant tried and failed to artificially inseminate a certain dog is susceptible of being proved true or false, Defendant's characterizations and reactions to these 20 alleged actions, presumably the asserted defamatory aspects, are not actionable. Instead, Defendant offers a subjective view and opinion that Plaintiffs' motivation was to make more money, the dog was “gun shy, ” the situation was horrifying, and there is no credibility for this corporation. See, e.g., Lowell v. Wright, 306 Or.App. 325, 345, 473 P.3d 1094, 1106 (2020) (“The situation is slightly different when the disclosed facts are allegedly false, but, ultimately, the same reasoning applies. Wright's statement that ‘this guy can't be trusted' is his own conclusion from the disclosed facts. The underlying ‘fact' statements are actionable, but Wright's conclusion is not.”).
Accordingly, the undersigned recommends that Plaintiffs may not recover on their claim for defamation in that the statements at issue are protected by the First Amendment.
2. Tortious Interference
South Carolina recognizes two claims of relevance here, a claim for intentional interference with contract, also known as tortious interference with contractual relations, and intentional interference with prospective contractual relations. To state a claim as to the former, a plaintiff must allege (1) the existence of a contract; (2) the defendant's knowledge of the contract's existence; (3) the defendant's intentional procurement of the breach of the contract; (4) the absence of justification; and (5) resulting damage. 21 Camp v. Springs Mortgage Corp., 426 S.E.2d 304, 305 (S.C. 1993). Additionally, “to recover on a cause of action for intentional interference with prospective contractual relations, . . . the plaintiff must prove: (1) the defendant intentionally interfered with the plaintiff's potential contractual relations; (2) for an improper purpose or by improper methods; (3) causing injury to the plaintiff.” Crandall Corp. v. Navistar Int'l Transp. Corp., 395 S.E.2d 179, 180 (S.C. 1990) (citing Restatement (Second) of Torts § 766B (1979)). “As an alternative to establishing an improper purpose, the plaintiff may prove the defendant's method of interference was improper under the circumstances.” Id.
The Restatement (Second) of Torts § 766B (1979) additionally provides as follows:
The relations protected against intentional interference by the rule stated in this Section include any prospective contractual relations, except those leading to contracts to marry . . ., if the potential contract would be of pecuniary value to the plaintiff. Included are interferences with the prospect of obtaining employment or employees, the opportunity of selling or buying land or chattels or services, and any other relations leading to potentially profitable contracts. Interference with the exercise by a third party of an option to renew or extend a contract with the plaintiff is also included. Also included is interference with a continuing business or other customary relationship not amounting to a formal contract.
The only identifiable contract in Plaintiffs' complaint concerns the contract with McKenzie. In full, Plaintiffs state Defendant, alone or in conjunction with Watson, “intentionally interfered” with a contract with 22 McKenzie concerning the naming and breeding of “Brandy, ” causing Plaintiffs special damages, and that “Plaintiffs' existing contracts would have been performed, according to their terms, but for Defendant's improper and unjustified interference.” [See ECF No. 1 ¶¶ 21, 35-36]. This is insufficient to state a claim for tortious interference with contractual relations. There is no indication of the terms of the contract, how those terms were breached, that Defendant intentionally procured the breach of those terms, how Defendant's actions were not justified, the damages that ensued from the breach, or that Defendant was a “stranger” to this contract. See, e.g., BCD LLC v. BMW Mfg. Co., LLC, 360 Fed.Appx. 428, 435 (4th Cir. 2010) (“Absence of justification means conduct that is carried out for an improper purpose, such as malice or spite, or through improper means, such as violence or intimidation. A party is justified, however, when acting in the advancement of its legitimate business interests or legal rights.”) (applying South Carolina law); PTA-FLA, Inc. v. ZTE Corp., C/A No. 3:12-02616-CMC, 2015 WL 13593694, at *19 (D.S.C. July 27, 2015) (dismissing tortious interference claim for failure “to allege facts supporting a plausible inference of lack of justification); Callum v. CVS Health Corp., 137 F.Supp.3d 817, 861 (D.S.C. 2015) (discussing “stranger doctrine” and granting motion to dismiss as to a claim for tortious interference with contractual relations, stating “[w]hile intentional interference with contract 23 and intentional interference with prospective contractual relations are distinct torts, they both require a plaintiff to show the defendant was a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract”).
Plaintiffs allege Defendant is “a stranger to Plaintiffs' prospective business relationships” elsewhere in the complaint [see, e.g., ECF No. 1 ¶ 22]; however, Plaintiffs do not allege Defendant was a stranger to the McKenzie contract. See id. ¶ 21.
Plaintiffs additionally allege Defendant interfered with an “existing and prospective business relationship” with AKC, stating as follows:
Defendant, individually or in combination with Robin Watson, intentionally interfered with Plaintiffs' existing and prospective business relationships with the American Kennel Club (the “AKC”), whose registration and certification of litters is crucial to Plaintiffs' sale of dogs bred, trained and sold by British Gundogs.
Defendant, by improper means, in combination with Robin Watson, interfered with Plaintiffs' registration of litter SR946222 by misrepresenting Defendant's entry of Robin Watson's signature, with his authority, on AKC registration documents, causing Plaintiffs special damages, including payments made to Robin Watson and diminished litter value.[ECF No. 1 ¶¶ 23-24].
It appears this claim as to AKC concerns a past, not potential, relationship between Plaintiffs and AKC. However, again, there is no indication of the terms that governed the relationship between Plaintiffs and ACK, nor how those terms were breached. Although Plaintiffs allege 24 Defendant somehow misrepresented Watson's signature, it is unclear how this action resulted in the damages alleged. Additionally, these allegations do not indicate Defendant was a stranger to the business relationship. See Callum, 137 F.Supp.3d at 861.
Turning to Plaintiffs' claim for tortious interference with prospective contractual relations, Plaintiffs have alleged that Defendant, herself or in conjunction with Watson, interfered with their relationship with Orvis, the Kennel Club, and multiple individuals. Taking each in turn, Plaintiffs allege as to Orvis as follows:
Defendant, by improper means, in combination with Robin Watson, interfered with Plaintiffs' existing and prospective business relationships with The Orvis Company, Inc., (“Orvis”) whose marketing, including its Orvis-endorsed breeding program, is a significant and valuable business relationship to Plaintiffs.
Defendant, a stranger to Plaintiffs' business relationship with Orvis, conspired with Robin Watson to make false and defamatory complaints to Orvis regarding the operations of British Gundogs, including Robin Watson's false telephone report to Orvis on or around June 9, 2017, using a pseudonym, and a written defamatory report, in January 2017, using the pseudonym “JMkess.”[ECF No. 1 ¶¶ 25-26].
South Carolina courts have held that “a cause of action for intentional interference with prospective contractual relations generally stands following the loss of an identifiable contract or expectation.” 25 United Educ. Distributors, LLC v. Educ. Testing Serv., 564 S.E.2d 324, 328 (S.C. Ct. App. 2002). Specifically, “the allegations must present facts that give rise to some reasonable expectation of benefits from the alleged lost contracts.” Id. at 329.
Here, Plaintiffs have failed to identify an identifiable contract or expectation, nor have they alleged any injury. Instead, Plaintiffs have alleged that Defendant lied to Orvis about Plaintiffs' operation. However, this allegation is insufficient to state a claim for tortious interference with prospective contractual relations. Likewise, Plaintiffs' allegation that “Defendant, a stranger to Plaintiffs' business relationships with The Kennel Club . . . conspired with Robin Watson to make false and defamatory complaints to The Kennel Club regarding Kennel Club registration of Plaintiffs' dogs, causing Plaintiffs special damages” [ECF No. 1 ¶ 27] fails to provide facts that give rise to some reasonable expectation of benefits from the alleged lost contract or expectation.
Finally, Plaintiffs allege that Defendant interfered with prospective business relationships with Kristy Cousins, Mike Stinson, Matt Neal, Richard King, Neal Duncan, and Matty Lebden, including potential employment contracts with Matt Neal and Richard King. Id. ¶ 28. No further information is offered as to these relationships beyond Plaintiffs' stating that Defendant 26 advised Kristy Cousins to “be very wary.” Id. ¶ 14. Again, this is insufficient to state a claim for tortious interference with prospective contractual relations.
Accordingly, the undersigned recommends Plaintiffs may not recover on their tortious interference claim.
3. Civil Conspiracy
Under South Carolina law, “[a] civil conspiracy . . . consists of three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage.” Lee v. Chesterfield Gen. Hosp., Inc., 344 S.E.2d 379, 382 (S.C. 1986) (citations omitted). “A claim for civil conspiracy must allege additional acts in furtherance of a conspiracy rather than reallege other claims within the complaint.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. 2009). Moreover, because the essence of a civil conspiracy claim is the special damage resulting to the plaintiff, the alleged damages must exceed the damages alleged for the plaintiff's other claims. Id.
Here, Plaintiffs allege as follows:
Defendant Rachael Watson combined with Robin Watson, and perhaps others, for the purpose of injuring Plaintiffs, causing Plaintiffs special damages.
Robin Watson's individual acts, taking in combination or conspiracy with Rachael Watson, separate and independent from Rachael Watson's own defamation and intentional interference with Plaintiff's existing and potential business relationships,27
caused Plaintiffs special damages independent of the damage cause by Defendant Rachael Watson's defamation and tortious interference.[ECF No. 1 ¶¶ 39-40].
These two paragraphs, without more, are insufficient to state a claim for civil conspiracy under South Carolina law, where “a plaintiff ‘must plead additional acts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint, and the failure to properly plead such acts will merit the dismissal of the claim.'” Carson v. Emergency MD, LLC, C/A No. 6:20-1946-HMH, 2020 WL 5077655, at *6 (D.S.C. Aug. 25, 2020) (citations omitted) (dismissing civil conspiracy claim where the plaintiff alleged that defendants combined together for the purpose of harming her and caused her special damages); see also Propel PEO, Inc. v. Roach, C/A No. 6:19-3546-HMH-KFM, 2020 WL 4606551, at *15 (D.S.C. July 24, 2020) (“Special damages must . . . be specifically alleged in the complaint to avoid surprise to the other party.”) (citing Hackworth, 682 S.E.2d at 875), report and recommendation adopted, C/A No. 6:19-3546-HMH-KFM, 2020 WL 4605227 (D.S.C. Aug. 11, 2020). 28
In their complaint, Plaintiffs allege Defendant, alone or in conspiracy with Watson or in combination with Watson, caused Plaintiffs special damages concerning the naming and breeding of “Brandy, ” Plaintiffs' registration of litter SR946222, and Defendant's defamatory complaints to The Kennel Club.[See ECF No. 1 ¶¶ 21, 24, 27]. However, as stated above, the specific damage asserted by Plaintiffs as a result of the alleged conspiracy is the exact same harm pleaded in support of their claims against Defendant for defamation and tortious interference. See Pye v. Estate of Fox, 633 S.E.2d 505, 511 (S.C. 2006) (“Because the quiddity of a civil conspiracy claim is the damage resulting to the plaintiff, the damages alleged must go beyond the damages alleged in other causes of action.”).
In sum, the undersigned recommends the district judge find that Plaintiffs have not established Defendant's liability on Plaintiffs' claims for defamation, tortious interference, and civil conspiracy.
4. Damages
As stated above, Plaintiffs seek a judgment against Defendant in the amount of at least $107,441.99, consisting of general damages, special damages, and attorneys' fees. [ECF No. 64 at 5]. Plaintiffs' calculation of general damages rests on Criscoe's declaration in which he “estimates[s] British Gundogs' general damages, from the adverse impact of Mrs. Corbett's false accusations (herself or with Robin Watson) on British Gundogs, LLC's reputation, at between $50,000 and $100,000 in lost revenue and profit opportunity in the last three years.” [ECF No. 64-1 ¶ 6]. Likewise, Criscoe, who replaced Watson in Plaintiffs' employment, estimates $35,000 in special damages based on (1) Defendant or Watson's interference with the terms of the sale of “Brandy, ” preventing Plaintiffs from exercising their rights, costing Plaintiffs from $8,000-10, 000 in revenue, and (2) Defendant or Watson's 29 statements to prospective buyers that Plaintiffs mistreated their dogs, costing Plaintiffs $25,000 in revenue. Id. ¶¶ 2-5. No further information is provided, for example, regarding the contract concerning “Brandy, ” who the prospective buyers were, or how the $50,000 and $100,000 in lost revenue and profit opportunity in the last three years was estimated.
Criscoe also declares that “British Gundogs estimates that the delay in filling [Watson's] job, costing British Gundogs, LLC sales and training revenue, and costs associated with recruiting Mr. King and Matt Neal, another respected trainer, cost British Gundogs at least $20,000 in costs and lost sales opportunities ....” [ECF No. 64-1 ¶ 2]. However, Criscoe indicates this cost and lost sales opportunities are encapsulated by the $35,000 estimate in special damages discussed above. See Id. 28 U.S.C. § 1927.
Because the undersigned recommends the district judge find that Plaintiffs have not established Defendant's liability on Plaintiffs' claims for defamation, tortious interference, and civil conspiracy, the undersigned also recommends the district judge find Plaintiffs not entitled to the damages discussed above.
Plaintiffs additionally seek attorneys' fees and costs, in the amount of $22,441.99, arguing that “Defendant's bad faith in response to Plaintiffs' post default discovery efforts, and contempt of the Court's Orders compelling disclosures, warrants an award, as part of the monetary judgment, of Plaintiffs' reasonable attorney fees.” [ECF No. 64 at 4]. Plaintiffs ground their 30 request in 28 U.S.C. § 1927, the court's inherent authority to sanction bad faith litigation conduct, and the court's civil contempt powers “to compensate the [movants] for losses sustained as a result of the contumacy.” [ECF No. 64 at 4 (citing Nutramax Labs, Inc. v. Manna Pro Products LLC, C/A No. 0:16-01255-JMC, 2016 WL 11604340, at *4 (D.S.C. Dec. 1, 2016)].
This provision provides as follows:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
As noted by Plaintiffs, courts in this district have declined to apply 28 U.S.C. § 1927 to a pro se litigant:
Even if defendants did expressly request that this Court impose sanctions pursuant to § 1927, it could not do so as that section applies only to attorneys. The plain language of the statute dictates this conclusion. See 28 U.S.C. § 1927 (“Any attorney or other person admitted to conduct cases in any court ....”) (emphasis added). There seems to be a split of authority as to whether or not § 1927 applies to pro se litigants. This Court, however, agrees with those courts that have found that § 1927 does not apply to pro se litigants but only to licensed attorneys.Balcar v. Bell & Assocs., LLC, 295 F.Supp.2d 635, 639 (N.D. W.Va.), aff'd, 83 Fed.Appx. 519 (4th Cir. 2003). 31
Because the literal construction of 28 U.S.C. § 1927 renders its application limited to attorneys and not to pro se litigants like Defendant, the undersigned declines to recommend sanctions based on this statutory provision. Likewise, the undersigned declines to recommend sanctions based on “the court's inherent authority to sanction bad faith litigation, ” where, here, Plaintiffs have offered no argument or case law in support of sanctions.
Turning to the court's civil contempt powers, “[a] court may impose sanctions for civil contempt ‘to coerce obedience to a court order or to compensate the complainant for losses sustained as a result of the contumacy.'” Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 821 (4th Cir. 2004) (citing In re Gen. Motors Corp., 61 F.3d 256, 258 (4th Cir. 1995)). “Contempt is a weighty penalty and should not be casually imposed.” In re Wilson, No. 982831, 1999 WL 976491, *2 (4th Cir. Oct. 7, 1999).
The Fourth Circuit has explained:
[t]o establish civil contempt, a movant must show each of the following elements by clear and convincing evidence:
(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant's “favor”; (3) that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive) of such violations; and (4) that the movant suffered harm as a result.32 JTH Tax, Inc. v. H&R Block E. Tax Servs., Inc., 359 F.3d 699, 705 (4th Cir. 2004) (brackets and ellipses omitted) (citing Ashcroft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000)).
Here, Plaintiffs' argument regarding their request that the court exercise its civil contempt powers in this instance is, in full, as follows:
Plaintiffs have incurred $22,441.99 in attorney fees and ancillary office costs (mail, copying, research services) between the initiation of post-default discovery in May 2019 and the end of November 2020, and will incur additional expenses associated with this submission and any further litigation. These fees, billed at less than Plaintiffs' counsel's normal market rates, have been incurred as a direct result of Defendant's unreasonable and vexatious refusal to allow the discovery properly requested, and later ordered, by this Court.[ECF No. 64 at 4-5].
Here, the undersigned does not have the authority to hold a party in civil contempt in a case such as the present one, where the case is not a misdemeanor case and the undersigned is not presiding with the parties' consent under 28 U.S.C. § 636(c). 28 U.S.C. § 636(e). Rather, the undersigned can only certify factual findings and refer the issue to the presiding District Judge, who can decide whether to enter a civil contempt order. 28 U.S.C. § 636(e)(6)(B)(iii); Proctor v. State Gov't of N.C. , 830 F.2d 514, 521 (4th Cir. 1987). Thus, the undersigned construes Plaintiffs' request as a motion to certify to the district court facts supporting holding Defendant in civil 33 contempt. See, e.g., Maegan Garner, Plaintiff/Counter-Defendant, v. Soc'y Fashion Week LLC, Alan Brady King, Krissy King, Defendants/Counter-Claimants., C/A No. 6:19-00588-DCC-JDA, 2020 WL 8483821, at *1 n.1 (D.S.C. Sept. 17, 2020), report and recommendation adopted as modified, C/A No. 6:19-00588-DCC-JDA, 2020 WL 8483822 (D.S.C. Dec. 2, 2020); see also Smiley v. Stevenson, C/A No. 0:09-2039-TLW-PJG, 2010 WL 2902757, at *3 (D.S.C. Apr. 30, 2010) (declining “to certify this matter pursuant to 28 U.S.C. § 636(e)(6)” where the plaintiff had “not made a showing that contempt is appropriate”).
The applicable facts here are those set forth above, and the undersigned concludes that they do not justify finding Defendant in contempt. At issue is the court's May 22, 2020 order granting Plaintiffs' renewed motion to compel. [ECF No. 39]. The order was clear as to what it required, directing Defendant to produce responsive documents to Plaintiffs' discovery requests at issue, including providing “electronic access to Plaintiff's counsel, or their identified forensic ESI agent, to any social media accounts that are now or have since December 2, 2016 been used on any occasion by Defendant Rachael Watson, including, specifically, the private or ‘closed' Facebook account for Tibea Gundogs” and “any electronic mail account(s) that are now or have since 2016 been used on any occasion” by Defendant. [ECF No. 39 at 9, ECF No. 28-3]. 34 Although Plaintiffs informed the court that Defendant has failed to provide all of the access and responsive documents requested [see, e.g., ECF No. 53 at 12 (stating the forensic examiner was not allowed access to the referenced social media accounts due to Watson's refusal and because Defendant stated “she did not know the log-in and password information” for the social media accounts and certain electronic mail accounts); ECF No. 56], the parties dispute whether or not, for example, Defendant is required to provide Plaintiffs access to social media accounts that she claims are not hers. [See, e.g., ECF No. 63 at 1 (“Rigrish's examiner had twenty-four-hour access agreed to my Facebook page. His examiner spoke to my husband for his details. My husband declined; I do not have access to his Facebook pages.”)].
At issue are additional categories of discovery. However, access to Defendant's social media and email accounts has been of primary dispute between the parties. [See, e.g., ECF No. 60 at 3 (“Mrs. Corbett's failure to produce or provide access to the ordered social media and electronic mail makes it impossible for Plaintiffs to make a reasonable calculation of the damages suffered as a result of Mrs. Corbett's defamation and tortious interference, a predicate to making a proposal for final resolution based on evidence of Mrs. Corbett's admitted defamation/interference.”)].
Given this dispute and that Plaintiffs have not put forth argument or case law in support of their position, that, for example, Defendant is in contempt of the court's order by not providing access information to social 35 media accounts she claims are not her own, the undersigned declines to certify facts to the district judge for contempt proceedings.
Plaintiffs' complaint additionally references injunctive relief, but the undersigned has not addressed this issue, where Plaintiffs have not put forth argument or evidence in support of this relief.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiffs' motion for default judgment and dismiss the complaint without prejudice for failure to state a claim. [ECF No. 64].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 36
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
901 Richland Street
Columbia, South Carolina 29201
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). 37