Lamie v. Smith et al

Filing 76

ORDER ADOPTING REPORT AND RECOMMENDATION 42 , defendant's motion to dismiss 9 is denied; plaintiff's motion to strike 35 is denied; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ERVIN JOSEPH LAMIE, JR., Plaintiff, ) ) ) -v) ) GREG SMITH, et al., ) Defendants. ) ____________________________________) No. 1:12-cv-201 HONORABLE PAUL L. MALONEY ORDER ADOPTING REPORT AND RECOMMENDATION Before the Court is a report and recommendation (R&R ECF No. 42) issued by the magistrate judge. The Magistrate Judge recommends (1) denying Defendants’ motion to dismiss (ECF No. 9) on the ground of res judicata; (2) denying Defendants’ supplemental motion to dismiss (ECF No. 17), but amending the caption to include “P.W. Services, Inc. As Conservator for Muriel LaMie,” in lieu of Muriel Lamie, with summons to issue; and (3) denying Plaintiff’s motion to strike and for entry of default judgment (ECF No. 35). The parties are all appearing pro se. After the R&R issued, Defendants filed a document in which they state they have no objections to the R&R. (ECF No. 43.) Plaintiff filed objections to two of the three recommendations. (ECF No. 60.) Plaintiff objects to the recommendation to alter the caption. Plaintiff also objects to the recommendation that his motion to strike be denied. After being served with a report and recommendation issued by a magistrate judge, a party has fourteen days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Having reviewed the record, including the R&R, objections, and relevant documents, the Court finds the facts in the report supported by the record. The Court finds no support, factually or legally, for Plaintiff’s objections. Therefore, the Report and Recommendation (ECF No. 42) is ADOPTED as the opinion of this Court. A. Defendants’ motion to dismiss (ECF No. 9) is DENIED; B. Defendants’ supplemental motion (ECF No. 17) to dismiss is DENIED; C. The caption for this action shall be amended placing “P.W. Services, Inc. As Conservator for Muriel LaMie,” in lieu of “Muriel Lamie”; D. P.W. Services, Inc., as conservator for Muriel LaMie, shall be served with a copy of the summons and complaint;1 E. Plaintiff’s motion to strike (ECF No. 35) is DENIED. IT IS SO ORDERED. Date: July 23, 2012 /s/ Paul L. Maloney Paul L. Maloney Chief United States District Judge 1 Because P.W. Services, Inc. is a corporation, it will have to be represented by counsel. “The rule of this circuit is that a corporation cannot appear in federal court except through an attorney.” Doherty v. American Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984) (citing Ginger v. Cohn, 426 F.2d 1385, 1386 (6th Cir. 1970) and U.S. v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969)); see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-202 (1993) (“It has been the law for a better part of two centuries, for example, that a corporation may appear in federal courts only through licensed counsel.” (citations omitted)). 2