United States District Court, N.D. West Virginia
TAWAYNE D. LOVE, Plaintiff,
DIVINE ORTIZ, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
26], GRANTING PLAINTIFF'S MOTION TO DISMISS [DKT. NO.
40], AND DISMISSING THIS CASE WITHOUT PREJUDICE
M. KEELEY UNITED STATES DISTRICT JUDGE
August 18, 2016, the pro se plaintiff, Tawayne D.
Love (“Love”),  filed a complaint against the
pro se defendant, Divine Ortiz
(“Ortiz”), alleging that Ortiz breached the
parties' publishing contract (Dkt. No. 1). Pursuant to
the contract, Ortiz and his company, ZitrO Publications,
agreed to publish Love's novel, Chasing a Dream.
Id. at 1. Love alleges that Ortiz failed to properly
edit the work, market the work, and pay royalties for sales
of the work. Id. at 7-8. For relief, he seeks $1,
000 in actual damages and $250, 000 in punitive damages.
Id. at 8. Pursuant to 28 U.S.C. § 636 and the
local rules, the Court referred the action to the Honorable
Michael J. Aloi, United States Magistrate Judge (Dkt. No. 3).
September 8, 2016, Magistrate Judge Aloi granted Love's
motion for leave to proceed in forma pauperis (Dkt.
Nos. 5; 7), and the United States Marshals Service served the
complaint on Ortiz's mother on November 2, 2016 (Dkt. No.
10). When Ortiz failed to file a timely answer or responsive
pleading, Magistrate Judge Aloi directed the Clerk to enter
default, and the Clerk did so on December 1, 2016 (Dkt. Nos.
11; 12). On December 14, 2016, however, Ortiz filed a motion
to dismiss the complaint (Dkt. No. 15). Magistrate Judge Aloi
construed the motion in part as a motion to set aside entry
of default, and he set aside the Clerk's entry of default
on December 20, 2016 (Dkt. No. 17). Thereafter, Love filed a
number of motions, including a motion seeking leave to amend
his complaint and a response to Ortiz's motion to dismiss
(Dkt. Nos. 23; 25).
February 2, 2017, Magistrate Judge Aloi filed a Report and
Recommendation (“R&R”) recommending that the
Court dismiss Love's complaint without prejudice because
his allegations failed to satisfy the $75, 000
amount-in-controversy requirement of diversity jurisdiction
(Dkt. No. 26). First, he reasoned that punitive damages are
unavailable in a breach of contract case unless the conduct
“constitutes an independent, intentional tort, ”
such as fraud, malicious misconduct, or misrepresentation,
which Love did not allege. Id. at 3. Second,
Magistrate Judge Aloi reasoned that, even had Love alleged
such a distinct tort, $250, 000 in punitive damages does not
bear a reasonable relationship to the alleged $1, 000 in
actual damages. Therefore, Magistrate Judge Aloi recommended
that the Court dismiss the case and deny all pending motions
as moot. Id. at 4.
February 21, 2017, Love filed objections to the R&R, as
well as a renewed motion seeking leave to amend his complaint
(Dkt. Nos. 30; 31). He conceded that Magistrate Judge
Aloi's assessment of the amount in controversy is
“fair, ” but argued that his “issues are
predicated upon further factual development” (Dkt. No.
30 at 2). Love avered that he “was not aware that these
facts were necessary to plead in the body of the complaint,
” but that they “became relevant only during
discovery” (Dkt. No. 31 at 1). If permitted to amend,
Love intended to supplement his complaint with allegations
regarding the “commercial ramifications of improperly
edited e-books, ” the number of books actually sold,
and the effects of being denied the ability to purchase
copies of the book for resale. Id. at 2. He further
argued that “copies of telephone conversations from the
B.O.P. . . . are necessary to show [Ortiz's] malicious
intent” to “prey upon writers who are
incarcerated” (Dkt. No. 30 at 3).
April 7, 2017, noting that Love had failed to file a proposed
amended complaint as required by LR Civ P 15.01, the Court
directed him to do so by May 5, 2017 (Dkt. 35 at 4). It
further indicated that, upon receipt of Love's proposed
amended complaint, it would consider Magistrate Judge
Aloi's recommendations as well as Love's motion for
leave to file his amended complaint. Id. at 4-5.
11, 2017, Love filed a “Motion to Dismiss” the
case (Dkt. No. 40). Contrary to his prior objections, Love
now concedes that the R&R is correct that the
“action [should] be dismissed for lack of subject
matter jurisdiction”; he advises that he intends to
refile the case in state court. Id. at
The Court thus CONSTRUES this filing as a withdrawal of
reviewing a magistrate judge's R&R, the Court must
review de novo only the portion to which an
objection is timely made. 28 U.S.C. § 636(b)(1)(C). On
the other hand, the Court may adopt, without explanation, any
of the magistrate judge's recommendations to which the
parties do not object. See Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983). Courts will uphold those
portions of an R&R to which no objection has been made
unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
Love has withdrawn his objections to the R&R, and has
expressed agreement with its conclusion, the Court is under
no duty to conduct a de novo review of Magistrate
Judge Aloi's findings. Furthermore, following a review of
the R&R and the record for clear error, the Court adopts
the opinion of the Magistrate Judge for the reasons discussed
in the R&R (Dkt. No. 26).
conclusion, the Court:
1. ADOPTS the R&R (Dkt. No. 26);
2. GRANTS Love's Motion to Dismiss (Dkt. No. 40);
3. DENIES AS MOOT Ortiz's Motion to Dismiss (Dkt. No.
4. DENIES AS MOOT Love's Motion for Extension of Time to