Leach v. TD Bank, N.A.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:22-CV-9-D CURTIS.LEACH, ) Plaintiff, v. ORDER TD BANK, N.A., et al., Defendants. □ On November 18, 2021, Curtis Leach (“Leach” or “plaintiff’), proceeding pro se, filed a complaint against numerous defendants in Johnston County Superior Court [D.E. 1-4]. On January 6, 2022, defendant RAC Acceptance East, LLC, removed the action to this court [D.E. 1]. On September 22, 2023, defendant Bridgecrest Credit Company moved to dismiss the action for lack of prosecution [D.E. 142] and filed a memorandum in support [D.E. 143]. On November 15, 2023, defendants filed a joint motion for order to show cause [D.E. 147] and a memorandum in support [D.E. 148]. On January 5, 2024, pursuant to 28 U.S.C. § 636 (b)(1), the court referred the case to Magistrate Judge Numbers for a memorandum and recommendation (“M&R”) on defendant Bridgecrest Credit Company’s motion to dismiss for lack of prosecution and defendants’ joint motion for order to show cause [D.E. 150]. On January 18, 2024, Judge Numbers held a show cause hearing [D.E. 154, 157]. On February 27, 2024, Judge Numbers ordered limited discovery and briefing about whether and when Leach filed an arbitration demand with the American Arbitration Association. See [D.E. 155]. On June 4, 2024, Judge Numbers recommended that the court grant defendant Bridgecrest Credit Company’s motion to dismiss for lack of prosecution, that the court dismiss the complaint with prejudice due to Leach’s failure to comply with the court’s July 12, 2022 order, fabrication of documents, and perjury. See [D.E. 158]. Objections to the M&R were due June 18, 2024. See id, at 6. On June 27, 2024, Leach filed objections to the M&R [D.E. 159] and a motion to allow the late objections [D.E. 160]. On July 3, 2024, defendants filed a response in opposition to the motion to allow late objections, requested an order adopting the M&R, and asked for dismissal of the case without a de novo review [D.E. 161]. “The Federal Magistrates Act requires a district court to make a de novo determination of those portions of the magistrate judge’s report or specified proposed findings or recommendations to which objection is made.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (cleaned up); see 28 U.S.C. § 636 (b)(1). Absent a timely 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, 416 F.3d at 315 (quotation omitted). If a party makes only general objections, de novo review is not required. See Wells v. Shriners Hosp., 109 F.3d 198, 200 (4th Cir. 1997). In “order to preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quotation omitted); see United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Although Leach’s objections to the M&R were untimely, the court reviews for clear error. See Diamond, 416 F.3d at 315 . The court has reviewed the M&R and the record. As for those portions of the M&R to which plaintiff did not object, the court is satisfied that there is no clear error on the face of the record. As for the objections, the court overrules them as baseless. The court adopts the M&R. In sum, the court ADOPTS the conclusions in the M&R [D.E. 158], GRANTS defendant’s_ □ motion to dismiss [D.E. 142], GRANTS IN PART plaintiffs motion to file late objections [D.E. 160], and DISMISSES WITH PREJUDICE plaintiff's complaint for failure to comply with a court order, fabrication of documents, and perjury. The clerk shall close the case. ‘SO ORDERED. This & day of August, 2024. . 4 INeveA J. S C. DEVER I United States District Judge