McIver v. V.A. United States
7:18-cv-00009
E.D.N.C.Dec 28, 2017Background
- Plaintiff Shirley Verrette McIver filed a suit naming Drs. Arle and Gordon and the United States; defendants Gordon and the United States moved to dismiss.
- Magistrate Judge West issued a Report & Recommendation (R & R) recommending transfer to the Eastern District of North Carolina and declaring the pending motions to dismiss moot.
- No party filed timely objections to the R & R; Plaintiff filed a notice agreeing to transfer.
- The district court reviewed the R & R for clear error and adopted it in large part, but declined to adopt three pages of the R & R that discussed potentially incorrect South Carolina pre-filing law.
- The court transferred the case to the U.S. District Court for the Eastern District of North Carolina and denied as moot Defendants Gordon’s and the United States’ motions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to accept the Magistrate Judge’s recommendation to transfer venue | McIver agreed the case should be transferred | Defendants did not object to transfer | Court adopted transfer to Eastern District of North Carolina |
| Whether to adopt all legal analysis in the R & R | Implicitly agreed by not objecting; supported transfer | Defendants filed no objections to R & R | Court adopted R & R except for pages discussing possibly incorrect state-law pre-filing mandates |
| Whether to dismiss claims on pending motions to dismiss | Plaintiff opposed dismissal by supporting transfer instead | Gordon and the United States moved to dismiss | Motions to dismiss were denied as moot due to transfer |
| Whether South Carolina pre-filing malpractice statutes applied and warranted dismissal | Plaintiff did not press application of those statutes in this court | Magistrate suggested certain S.C. pre-filing statutes might apply and could warrant dismissal | District court declined to adopt that portion of the R & R, noting the issue is unresolved and unnecessary to the transfer decision |
Key Cases Cited
- Mathews v. Weber, 423 U.S. 261 (explaining the magistrate judge’s report is a recommendation and district court must make final determination)
- Camby v. Davis, 718 F.2d 198 (4th Cir. 1983) (in absence of objections, district court need not explain adoption of magistrate recommendation)
- Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (district court reviews R & R for clear error if no timely objection)