PREFAB, INCORPORATED; JAMES M. MILLEAGE; EDWARD D. SNAVELY, Plaintiffs-Appellants, and BONNIE I. MILLEAGE, Third Party Defendant-Appellant, versus BRANCH BANKING & TRUST, INCORPORATED; ASSOCIATED MACHINE TOOLS; GERALD O'REILLY; JOHN DEMPSEY, JR.; WILLIAM NEWBOLD, Defendants-Appellees, and HOME FEDERAL SAVINGS BANK OF SOUTH CAROLINA, Third Party Defendant.

No. 00-1562

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

9 Fed. Appx. 276; 2001 U.S. App. LEXIS 11874

March 30, 2001, Submitted

June 7, 2001, Decided

NOTICE: [**1] RULES OF THE FOURTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Dennis W. Shedd, District Judge. (CA-97-2875-0-19).

DISPOSITION: AFFIRMED.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellants sought review of an order of the United States District Court for the District of South Carolina, which dismissed their complaint for failure to obey discovery orders pursuant to Fed. R. Civ. P. 37(b). Appellants also filed a motion for permission to file a Fed. R. Civ. P. 60(b) motion.

OVERVIEW: A magistrate judge had recommended that the complaint be dismissed based on appellants' repeated failure to comply with discovery orders. Appellants were advised that their failure to file timely objections to the recommendation would waive appellate review of a district court order based upon the recommendation. Appellants failed to object to the magistrate judge's recommendation and the district court dismissed their case. On appeal, the court affirmed and held that appellants waived appellate review by failing to file objections after receiving proper notice. The court denied appellants' motion to file a Fed. R. Civ. P. 60(b) motion.

OUTCOME: The court affirmed the district court's judgment dismissing appellants' action and denied their motion for permission to file a motion for relief from judgment.

COUNSEL: Stephen D. Schusterman, SCHUSTERMAN LAW FIRM, P.A., Rock Hill, South Carolina, for Appellants.

Constance L. Young, Thomas L. Ogburn, III, POYNER & SPRUILL, L.L.P., Charlotte, North Carolina; James W. Bradford, Jr., BRADFORD & BRADFORD, P.A., York, South Carolina; Susan B. Lipscomb, NEXSEN, PRUET, JACOBS & POLLARD, Columbia, South Carolina, for Appellees.

JUDGES: Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

OPINION: [*276]

PER CURIAM:

Prefab, Inc., James Milleage, Edward Snavely, and Bonnie Milleage (the "Appellants") appeal from the district court's order dismissing their complaint for failure to obey discovery orders pursuant to Fed. R. Civ. P. 37(b). The Appellants' case was referred to a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 1993 and Supp. 2000 ). The magistrate judge recommended that the complaint [**2] be dismissed based on the Appellants' repeated failure to comply with discovery orders and advised [*277] the Appellants that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, the Appellants failed to object to the magistrate judge's recommendation.

[HN1] The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see Thomas v. Arn, 474 U.S. 140, 155, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985) (holding "that a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired"). The Appellants have waived appellate review by failing to file objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. [**3] The motion to file a Rule 60(b) motion is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED