Daugherty v. Kagan ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Christopher R. Daugherty; Robert P. ) C/A No. 3:20-cv-3962-SAL Daugherty, ) Plaintiffs, ) ) OPINION & ORDER v. ) ) Lenny Kagan; Unknown Jan/John Doe(s); ) Law Office of Lenny Kagan, ) ) Defendants. ) ___________________________________ ) This matter is before the court for review of the September 9, 2021 Report and Recommendation (the “First Report”) and the October 18, 2021 Report and Recommendation (the “Second Report”) of United States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). [ECF Nos. 71, 78.] In the First Report, the Magistrate Judge recommends that Defendant Lenny Kagan’s motion to dismiss or transfer venue, ECF No. 55, be denied. [ECF No. 71.] The Report found that Plaintiffs’ complaint stated a claim upon which relief could be granted and that the District of South Carolina remains the appropriate venue pursuant to 28 U.S.C. § 1391(b). Id. at 3–4. In the Second Report, the magistrate judge recommends that the court dismiss Defendants Unknown Jan/John Doe(s) and Law Office of Lenny Kagan pursuant to Federal Rule of Civil Procedure 4(m) as those defendants “have not appeared in this matter” and “[a] review of the docket reveals no evidence that these defendants have been served or that Plaintiffs have attempted to serve them. [ECF No. 78 at 1 n.1]. No party filed objections to the First Report or the Second Report, and the time to do so has lapsed. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the court is not required to provide an explanation for adopting the Report and 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, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the First and Second Reports, the applicable law, and the record of this case in accordance with the above standard, the court finds no clear error. Accordingly, the court adopts the First Report, ECF No. 71, and the Second Report, ECF No. 78, in their entirety and incorporates the Reports herein. As a result, Defendant’s Motion to Dismiss or Transfer Venue, ECF No. 55, is DENIED, and Defendants Unknown Jan/John Doe(s) and Law Office of Larry Kagan are DISMISSED from this action. IT IS SO ORDERED. /s/ Sherri A. Lydon______________ United States District Judge December 6, 2021 Florence, South Carolina