Fitzgibbons ex rel. Dir. of S.C. Dep't of Ins. v. Atkinson

• Decision Date: 05 March 2020
• Docket Number: Case No. 8:17-cv-02092-DCC
• Parties: Michael J. Fitzgibbons, acting on behalf of the Director of the South Carolina Department of Insurance, in his capacity as the Special Deputy Receiver of the South Carolina Health Corporative, Inc., a Multiple Employer Self-Insured Health Plan Plaintiff, v. Alton Atkinson; John Thomas Childs, IV; Larry Busch; De'Shaun Williams; Cherise Raymond; Vickie Damon; Winston Cook; Kristin Ketterman; Daniel Wheeler; King Capital Group; A-Z Consulting LLC; Intermediary Network; Busch Law Center LLC; JJLJ Financial; Protégé Investments LLC; IGWT Consulting LLC; Cook Business Services LLC; John Does 1-10, Defendant.
• Court: U.S. District Court — District of South Carolina

Michael J. Fitzgibbons, acting on behalf of

the Director of the South Carolina Department of Insurance,

in his capacity as the Special Deputy Receiver of

the South Carolina Health Corporative, Inc.,a Multiple Employer Self-Insured Health Plan Plaintiff, v. Alton Atkinson; John Thomas Childs, IV; Larry Busch; De'Shaun Williams;

Cherise Raymond; Vickie Damon; Winston Cook; Kristin Ketterman;

Daniel Wheeler; King Capital Group; A-Z Consulting LLC;

Intermediary Network; Busch Law Center LLC; JJLJ Financial;

Protégé Investments LLC; IGWT Consulting LLC;

Cook Business Services LLC; John Does 1-10, Defendant.

Case No. 8:17-cv-02092-DCC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

March 5, 2020

ORDER

This matter is before the Court on motions for summary judgment filed by pro se Defendants De-Shaun Williams and Cherise Raymond (collectively, "the Moving Defendants"). ECF Nos. 297, 298. Plaintiff filed responses in opposition, and Williams filed a reply. ECF Nos. 308, 309, 310, 324. 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 Jacquelyn D. Austin for pre-trial proceedings and a Report and Recommendation ("Report"). On August 22, 2019, the Magistrate Judge issued a Report recommending that the motions be granted in part as to Plaintiff's claim pursuant to 18 U.S.C. § 1962(a) and denied in part as to all other claims. ECF No. 329. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if she failed to do so. Williams and Raymond each filed objections.¹ ECF Nos. 333, 334.

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)).

As an initial matter, no party objects to the Magistrate Judge's recommendation that the Moving Defendants' motions be granted as to the 18 U.S.C. § 1962(a) claim and denied as to Plaintiff's state law claims for fraudulent misrepresentation² and civil conspiracy. Accordingly, the Court has reviewed the record, applicable law, and the Report as they relate to these claims for clear error; finding none, the Court adopts these portions of the Magistrate Judge's Report.

The Magistrate Judge provides a thorough discussion of the relevant facts and applicable law which the Court specifically incorporates by reference. Because Williams's and Raymond's objections are mostly duplicative, the Court will address the arguments together. Where there are differences in their arguments, the Court will note it.

18 U.S.C. §§ 1962(c) and (d)

With respect to Plaintiff's claims pursuant to 18 U.S.C. §§ 1962(c) and (d), Williams states that the Magistrate Judge disregarded evidence that he submitted in support of his motion. Specifically, Williams argues that the Magistrate Judge disregarded sections of his deposition transcript and emails that would establish: (1) Plaintiff signed a contract explicitly stating that it would not contact the bank directly and Williams was merely reiterating the terms of the contract, (2) Williams was not Plaintiff's only contact, (3) Williams did not set the price for the letters of credit ("LOCs"), and (4) Williams did not direct operations. ECF No. 333 at 1-2. He contends that the Magistrate Judge provided no support for her conclusion that he must have been in on the scheme from the beginningand objects to her citation to an unpublished case as it "is not codified in case law." Id. at 2.

Raymond argues that most of the Magistrate Judge analysis focused on Williams; accordingly, she objects "because the Court was not specific enough in its ruling against her." ECF No. 334 at 1-2. Raymond then reiterates the same arguments made by Williams, including the allegation that the Magistrate Judge ignored evidence in support of summary judgment and that she improperly relied on an unpublished case. Id.

The Court has reviewed the record de novo, including the attachments to the Moving Defendants' motions for summary judgment. The Court finds that, at best, their deposition and emails create a genuine issue of material fact as to their roles in the scheme. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (holding that a court must construe all inferences and ambiguities against the movant and in favor of the non-moving party in determining whether a genuine issue of material act has been raised). The Magistrate Judge provides citations throughout the Report to evidence that the Moving Defendants knowingly participated in the fraudulent scheme and engaged in alleged predicate acts. See, e.g., ECF No. 329 at 12. In conducting a thorough review of the record in this case, the Court has examined the cited documents and agrees with the Magistrate Judge's view of the evidence. Accordingly, the objections are overruled.

With respect to the objection to the Magistrate Judge's reliance on an unpublished Fourth Circuit case, ECF Nos. 333 at 2; 334 at 2, the Court notes that the Moving Defendants have not provided, and the Court is unaware, of any authority that would prevent a Court from citing an unpublished case in either a Report or an Order. SeeGolden v. North Carolina, No. 1:14-cv-129, 2015 WL 457941, at *1 n. 2 (M.D.N.C. Feb. 3, 2015) ("Unpublished decisions are not precedential but are cited for their persuasive authority."). The Court notes that unpublished cases are not binding precedent and overrules the objections.³

Conversion

The Moving Defendants again argue that the Magistrate Judge failed to address any evidence provided in support of their motions. ECF Nos. 333 at 2; 334 at 2. The Court finds that the Moving Defendants' proffered evidence is insufficient to find that there is no genuine issue of material fact in light of the other evidence presented. Accordingly, summary judgment is denied and the Moving Defendants'...