Hunt v. Branch Banking & Trust Co., Civil Action No.: 4:12-2216-MGL-TER

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMary G. Lewis
Docket NumberCivil Action No.: 4:12-2216-MGL-TER
PartiesCindy B. Hunt, Plaintiff, v. Branch Banking and Trust Company, Defendant.
Decision Date13 March 2013

Cindy B. Hunt, Plaintiff,
v.
Branch Banking and Trust Company, Defendant.

Civil Action No.: 4:12-2216-MGL-TER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

Dated: March 13, 2013


OPINION AND ORDER

This is the third lawsuit filed by Plaintiff Cindy B. Hunt ("Plaintiff") arising out of her banking relationship with Defendant Branch Banking and Trust Company ("BB&T"). This matter is now before the Court with the Report and Recommendation of United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. § 636(b)(1) (2006) and Local Civil Rule 73.02 for the District of South Carolina. Plaintiff, who is proceeding pros se1 , alleges various state law causes of action against BB&T. In the underlying matter Defendant moves pursuant to F.R.Civ.P. 12(b)(6) to dismiss this action based upon Plaintiff's voluntary dismissal of the case prior to removal. (ECF No. 9.) The Magistrate Judge recommends that the Court grant Defendant's Motion to Dismiss. (ECF No. 22.) For the reasons set forth herein, the Court adopts the Magistrate Judge's Report and Recommendation and GRANTS Defendant's Motion to Dismiss.

BACKGROUND

The Magistrate Judge's Report sets forth in detail the relevant facts and standards of law on this matter, and the Court incorporates them and summarizes them below in relevant part. Plaintiff

Page 2

filed the instant action on July 9, 2012, in the Horry Court of Common Pleas, Horry County, South Carolina alleging various state law causes of action. (ECF No. 1.) On Saturday, August 4, 2012, Defendant filed its notice of removal pursuant to 28 U.S.C. §§ 1441 and 1446, asserting jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 through the electronic CM/ECF system. Notice was mailed to both Plaintiff and the Clerk of Court of Horry County on that same day. (Id. pp. 4-8.) The removal petition was docketed with this Court on Tuesday August, 7, 2012. Prior to either the Plaintiff receiving or the state court filing the Notice of Removal, Plaintiff filed a document in state court entitled "Withdrawal" which stated that:

The Plaintiff requests that the Complaint be withdrawn. The Defendant has not answered the complaint. The complaint was served on administrative assistant Layla Adams."
(ECF No. 9-2.)

The State Court stamped Plaintiff's Withdrawal as 10:46 A.M. on August 6, 2012. Defendants' Notice of Removal was stamped 1:49 P.M. on August 6, 2012, by the State Court. (ECF No. 9-1.) In the Public Index, the status of the state court case was listed as "Withdrawn" and the disposition was listed as "Withdrawn or Settled by the Parties." Id. The Magistrate Judge issued his Report and Recommendation and recommended the court grant Defendant's Motion to Dismiss pursuant to F.R.Civ.P. 12(b)(6) based on Plaintiff's voluntary dismissal of the action prior to removal.

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