Brown v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION

Jihad Brown, ) Case No. 5:20-cv-03524-DCC ) Plaintiff, ) ) v. ) ORDER ) United States of America, ) ) Defendant. ) ________________________________ )

This matter is before the Court on Plaintiff’s Complaint brought pursuant to the Federal Tort Claims Act. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial proceedings and a Report and Recommendation (“Report”). On October 21, 2020, the Magistrate Judge issued a Report recommending that this action be transferred to the United States District Court for the Middle District of Pennsylvania. ECF No. 8. The Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Plaintiff has not filed objections to the Report and the time to do so has lapsed. APPLICABLE LAW AND ANALYSIS 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 the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).

The Court will review the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of 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.” (citation omitted)).

After considering the record in this case, the applicable law, and the Report of the Magistrate Judge, the Court finds no clear error and agrees with the recommendation of the Magistrate Judge. The Court finds that venue is improper in this District and TRANSFERS this case to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1406(a).1

IT IS SO ORDERED.

s/ Donald C. Coggins, Jr. United States District Judge January 27, 2021 Spartanburg, South Carolina

1 Because the court raised the issue of transfer of venue sua sponte, pursuant to Feller v.Brock, 802 F.2d 722, 729 n.7 (4th Cir.1986), Plaintiff must be given an opportunity to be heard before a final decision on transfer is rendered. See also Magic Toyota, Inc. v. Southeast Toyota Distribs., Inc., 784 F. Supp. 306, 321 (D.S.C.1992); Sadighi v. Daghighfekr, 36 F. Supp. 2d 267, 278 (D.S.C. 1999). Plaintiff’s opportunity to file timely objections to the Report is considered to be the required opportunity to be heard under Feller before a final decision on transfer is rendered.