United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DISMISSING CASE
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se plaintiff initiated this action against
Experian, Trans Union, Bank of America, NCO Fin/99, Asset
Acceptance LLC, and Comenity Bank/Express in the Circuit
Court of Preston County, West Virginia, on April 8, 2016. On
May 4, 2016, Trans Union filed a notice of removal to this
Court, to which the other defendants consented and joined.
The plaintiff asserted claims under the Fair Credit Reporting
Act, the West Virginia Consumer Credit and Protection Act,
and West Virginia defamation and contract law. The claims are
based on the plaintiff's allegations that Experian
reported on his consumer reports late payments or debts on
accounts with Bank of America, NCO Fin/99, Comenity
Bank/Express, and Taleris Credit Union, for all of which he
alleged he was not responsible. The plaintiff claimed that he
had disputed the accounts with Experian, and Experian
informed him that all of the entities confirmed the accuracy
of the accounts. The plaintiff alleged that, as a result of
the defendants' actions, his credit rating has been
negatively affected, he was prevented from co-signing on his
son's loans, and he has suffered financial damages,
damage to his credit reputation, and various forms of
emotional and mental distress. The claims against Trans
Union, Asset Acceptance, Bank of America, Comenity
Bank/Express, and Experian have already been dismissed. NCO
Fin/99 is the only remaining defendant.
December 2, 2016, the undersigned judge entered an order of
referral to United States Magistrate Judge Michael John Aloi
for all non-dispositive pretrial motions excluding motions in
limine. ECF No. 75. On January 18, 2017, NCO Fin/99 filed its
Second Motion Compel Complete Discovery Responses (ECF No.
80), which came before the magistrate judge pursuant to the
order of referral. The magistrate judge held a status
conference on February 9, 2017, during which NCO Fin/99
represented to the Court that it had taken action to remove
the item at issue on the plaintiff's credit report in
2013. At the time of the status conference, the plaintiff had
not yet received an updated credit report and was thus unable
to confirm that the item had been removed. Accordingly, a
second status conference was scheduled for March 24, 2017.
March 24, 2017 status conference, the plaintiff advised the
Court that he had received his updated credit report and the
item at issue had been removed, which resolved the complaint.
The plaintiff then inquired as to whether he could be awarded
attorney's fees. However, the plaintiff is pro
se and, thus, has not incurred any attorney's fees.
The plaintiff also advised the Court that he had not been
required to pay any fees to file his case in the Circuit
Court of Preston County, West Virginia. The magistrate judge
found that the only expenses incurred by the plaintiff in
this civil action are de minimis postage and paper
costs and, thus, that the plaintiff has no attorney's
the plaintiff represented at the status conference that he
was satisfied with the outcome of his case and was agreeable
to dismissing this civil action. NCO Fin/99 had no objection
to the dismissal of the civil action. Thus, pursuant to the
order of referral for non-dispositive pretrial motions, the
magistrate judge denied as moot NCO Fin/99's Second
Motion to Compel Complete Discovery Responses. Additionally,
the magistrate judge recommended that this case be dismissed
with prejudice pursuant to Federal Rule of Civil Procedure
reasons set forth below, this Court adopts and affirms the
magistrate judge's report and recommendation dismissing
this civil action with prejudice.
nondispositive pretrial matters, a magistrate judge's
ruling may be reversed only on a finding that the order is
“clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1). “A
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a
mistake has been committed.” United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). In
light of the broad discretion given to a magistrate judge in
the resolution of nondispositive discovery disputes, the
court should only overrule a magistrate judge's
determination if this discretion is abused. Detection
Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 154 (W.D.
Rule of Civil Procedure 41(a)(2) provides that “an
action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” The undersigned judge agrees with the
magistrate judge's recommendation that dismissal by court
order is proper in this case based on the plaintiff's
voluntary dismissal and NCO Fin/99's representation that
it has no objection to the dismissal.
pro se plaintiff accepted service of the magistrate
judge's report and recommendation on March 27, 2017. The
report and recommendation notified the parties that they had
fourteen days after being served with a copy of the report
and recommendation to file any written objections with the
Clerk of the Court. The Court has received no objections from
either the pro se plaintiff or NCO Fin/99.
Accordingly, the magistrate judge's recommendation that
the case be dismissed with prejudice is adopted.
Additionally, given the plaintiff's voluntary dismissal
and NCO Fin/99's lack of objection, the magistrate judge
did not abuse his discretion in denying as moot the Second
Motion to Compel Complete Discovery Responses.
on the analysis above, this Court AFFIRMS and ADOPTS the
magistrate judge's report and recommendation (ECF No. 90)
that this civil action be dismissed with prejudice pursuant
to Rule 41(a)(2). Therefore, this civil action is hereby
DISMISSED WITH PREJUDICE pursuant to Rule 41(a)(2). It is