McIver v. V.A. United States
4:17-cv-01000
D.S.C.Dec 28, 2017Background
- Plaintiff Shirley Verrette McIver sued Drs. Steven Arle and Daniel Gordon and the United States in the District of South Carolina (Florence Division) under a medical-malpractice/FTCA framework.
- Defendants Gordon and the United States filed motions to dismiss during the proceedings.
- The Magistrate Judge issued a Report & Recommendation (R&R) recommending transfer of the case to the Eastern District of North Carolina and that the pending motions to dismiss be denied as moot.
- No party filed timely objections to the R&R; the plaintiff filed a response stating she agreed with transfer to the Eastern District of North Carolina.
- The District Court reviewed the R&R for clear error, rejected portions of the R&R (pages 7–9) that discussed South Carolina pre-filing statutory requirements as unnecessary and potentially incorrect, and adopted the remainder of the R&R.
- The Court ordered the case transferred to the U.S. District Court for the Eastern District of North Carolina and denied defendants’ motions to dismiss as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case should be transferred to the Eastern District of North Carolina | Agreed to transfer the case to EDNC | Did not object to transfer (no timely objections filed) | Court transferred the case to the Eastern District of North Carolina |
| Disposition of pending motions to dismiss | Wanted the case transferred rather than dismissed | Moved to dismiss (motions pending) | Motions to dismiss denied as moot after transfer |
| Standard of review for R&R in absence of objections | Plaintiff did not object; agreed with transfer | Defendants failed to file timely objections | Court applied clear-error review and adopted the R&R except as to certain legal discussion |
| Whether South Carolina pre-filing medical-malpractice statutes apply / warrant dismissal | Plaintiff did not urge adoption of the magistrate’s pre-filing analysis; supported transfer | Magistrate suggested potential applicability of S.C. statutes and possible dismissal for noncompliance | District Court declined to adopt the R&R’s discussion of S.C. pre-filing requirements as unnecessary/potentially incorrect and did not resolve the issue |
Key Cases Cited
- Mathews v. Weber, 423 U.S. 261 (1976) (magistrate recommendations are advisory; district court must conduct de novo review of objections)
- Camby v. Davis, 718 F.2d 198 (4th Cir. 1983) (in absence of objections to an R&R, district court need not explain adoption)
- Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (district court reviews for clear error when no timely objections to an R&R are filed)