McCants v. CitiFinancial Servicing, LLC et al
Filing
31
ORDER adopting the 27 Report and Recommendation. The 17 Motion to Strike is denied. The 12 Motion to Compel Arbitration is granted in part denied in part. The motion is granted as to an order compelling arbitration, but denied as to dismissal of plaintiff's claims. This action is REFERRED to Arbitration and STAYED. Defendants are ordered to file a status report by 5/4/2017 and by the first Thursday of each month. Signed by District Judge William H. Steele on 4/5/2017. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROSE McCANTS,
Plaintiff,
v.
CITIFINANCIAL SERVICING,
LLC, et al.,
Defendants.
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CIVIL ACTION 16-0283-WS-C
ORDER
This matter comes before the Court on Defendants’ Motion to Compel Arbitration (doc.
12) and plaintiff’s Motion to Strike Declaration of Lani Dodson (doc. 17). After extensive
briefing by the parties and oral argument conducted on October 18, 2016, Magistrate Judge
Cassady entered a comprehensive Report and Recommendation (doc. 27), in which he
recommended that the Motion to Strike be denied, that the Motion to Compel Arbitration be
granted in part and denied in part, that the matter be referred to arbitration, and that this action be
stayed pending the outcome of arbitration. Plaintiff filed Objections (doc. 28) to the Report and
Recommendation, to which defendants filed a Response (doc. 30).
In his “Notice of Right to File Objections,” the Magistrate Judge advised the parties of
their right to object via filing “specific written objections with the Clerk of Court.” (Doc. 27, at
26.) Applicable rules are clear that such objections must be “specific,” indeed. See Rule
72(b)(2), Fed.R.Civ.P. (“Within 14 days after being served with a copy of the recommended
disposition, a party may serve and file specific written objections to the proposed findings and
recommendations.”) (emphasis added). On that basis, the Report and Recommendation
cautioned the parties that “[a]n objection that merely incorporates by reference or refers to the
briefing before the Magistrate Judge is not specific.” (Doc. 27, at 27.)
Notwithstanding the specificity requirement, plaintiff’s Objections to the Report and
Recommendation track verbatim (with only very minor, non-substantive additions and deletions)
her original Response in Opposition to Defendants’ Motion to Compel Arbitration filed on
August 10, 2016. (Compare doc. 16 to doc. 28.) Indeed, side-by-side comparison of the two
documents reveals that plaintiff’s Objections consist of a wholesale cut-and-paste of the brief she
previously submitted to the Magistrate Judge, with each section now prefaced by a generic
statement that “[t]he Magistrate Judge erred” by ruling against plaintiff on that issue. (Doc. 28,
at 3, 8, 13, 14, 19, 21, 27.)1 Because they do nothing more than blithely incorporate previous
briefs, such Objections are not “specific,” as required by the rules. More fundamentally,
plaintiff’s Objections are unhelpful because they are devoid of any analysis or discussion of how
plaintiff contends the Magistrate Judge got it wrong in the Report and Recommendation.
Plaintiff nowhere sets forth any argument outlining why she believes the Report and
Recommendation is incorrect on any of these points, much less identifying what she contends to
be particular flaws or shortcomings in the Magistrate Judge’s treatment of the numerous
arguments raised by plaintiff against compelling arbitration or considering the Dodson
Declaration. Instead, plaintiff flatly says (without elaboration) that the Magistrate Judge erred in
each and every determination included in the Report and Recommendation, and invites the Court
to sift through plaintiff’s earlier brief to derive some reason that might support such a conclusion.
That is not how the Rule 72(b)(2) review process is designed to work.
At any rate, the Court has reviewed both plaintiff’s original briefs and the Report and
Recommendation. As to each issue raised by plaintiff, the Court finds that the Report and
1
Such Objections are framed in the most conclusory terms imaginable, to-wit: (i)
“The Magistrate Judge erred in his report by finding that an arbitration agreement existed which
was enforceable” (doc. 28, at 3); (ii) “The Magistrate Judge erred in his finding that an
arbitration agreement even if itsexists [sic] could be enforced despite federal law prohibiting
mandatory arbitration clauses in mortgage contracts” (id. at 8); (iii) “The magistrate judge erred
by grating [sic] motion to compel arbitration when he found arbitration enforceable despite there
not being an arbitration contract to enforce” (id. at 13); (iv) “The Magistrate Judge erred in
finding that the alleged arbitration agreement was not unconscionable” (id. at 14); (v) “The
Magistrate Judge erred by finding that claims were covered by the alleged arbitration agreement
because the Plaintiff’s Claims Fall Outside the Agreement’s Scope” (id. at 19 (emphasis
omitted)); (vi) “The Magistrate Judge erred in his report by finding that the Alleged Arbitration
agreement was not elective” (id.); (vii) “The Magistrate Judge erred in find [sic] that the alleged
arbitration agreement was unambiguous” (id. at 21); (viii) “The magistrate judge erred by finding
that the alleged arbitration agreement was not enforceable despite the Defendants not being
parties to the contract” (id.); and (ix) “The magistrate judge erred in denying the Plaintiff’s
motion to strike and allowing the declaration filed in support of the motion to compel arbitration
to be used as evidence in the case to support compelling arbitration” (id. at 27).
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Recommendation set forth a cogent, detailed, and thorough explanation, supported by legal
authorities and reasoning, why the Magistrate Judge disagreed with plaintiff’s position and made
the recommendations he did. Even under the de novo review contemplated by 28 U.S.C. §
636(b),2 the Court finds no error in the Report and Recommendation’s treatment of the issues
presented. To the contrary, the Report and Recommendation has explained in clear, persuasive
terms why the Magistrate Judge determined that (i) the Dodson Declaration was properly
considered in evaluating the Motion to Compel Arbitration; (ii) defendants met their burden
under Alabama law of establishing the existence of a contract containing an arbitration
agreement and affecting interstate commerce; (iii) the Dodd-Frank Act’s provisions prohibiting
mandatory arbitration of certain disputes involving mortgage loans were not retroactively
applicable to the mortgage executed by plaintiff in 1999; (iv) the arbitration agreement was not
unconscionable because there is no evidence of procedural unconscionability in the contract
formation process; (v) plaintiff’s claims are within the scope of the arbitration agreement; (vi)
the arbitration agreement provides for mandatory (not elective) arbitration; (vii) there are no
inconsistencies between the Mortgage and arbitration agreement that cannot be reconciled; (viii)
the arbitration agreement is unambiguous as to the forum for arbitration and the applicable rules
governing such arbitration; and (ix) defendants either stand in the shoes of the arbitration
agreement’s signatory or are third-party beneficiaries of that agreement, such that they are
empowered to enforce same. The Court adopts each of those determinations in full and
overrules plaintiff’s Objections to same.
After due and proper consideration of the issues raised, and a de novo determination of
those portions of the recommendation to which objection is made, it is ORDERED as follows:
1.
The Recommendation of the Magistrate Judge made under 28 U.S.C. §
636(b)(1)(B) and dated February 23, 2017, is ADOPTED as the opinion of this
Court;
2
Defendants filed a Response to Plaintiff’s Objections (doc. 30) in which they
argued that plaintiff’s failure to articulate “specific” objections to the Report and
Recommendation means that this Court should review the Magistrate Judge’s determinations for
“clear error” pursuant to § 636(b), rather than under a de novo standard. The Court need not
decide whether plaintiff’s Objections are sufficiently detailed to trigger de novo review. Even
under the more stringent de novo review, the undersigned would affirm and adopt the
determinations and explanations set forth in the Report and Recommendation.
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2.
Plaintiff’s “Objections to Magistrate’s Report and Recommendation” (doc. 28)
are OVERRULED;
3.
Plaintiff’s Motion to Strike Declaration of Lani Dodson (doc. 17) is DENIED;
4.
Defendants’ Motion to Compel Arbitration (doc. 12) is GRANTED IN PART,
and DENIED IN PART. The Motion is GRANTED insofar as defendants seek
an order compelling arbitration of plaintiff’s claims, but is DENIED insofar as
defendants seek dismissal with prejudice of plaintiff’s claims against them;
5.
All claims asserted by plaintiff in this action are hereby REFERRED to binding
arbitration in accordance with the terms of the Arbitration Agreement (doc. 12,
Exh. A, at Exh. 2);
6.
This action is STAYED pending arbitration; and
7.
Notwithstanding this determination, the Court retains jurisdiction to confirm or
vacate any resulting arbitration award under 9 U.S.C. §§ 9-10. See TranSouth
Financial Corp. v. Bell, 149 F.3d 1292, 1297 (11th Cir. 1998). To keep the Court
apprised of developments in the arbitral proceedings, defendants are ordered to
file, on or before the first Thursday of each month, a written report reflecting
the status of the arbitration proceedings. The first such report is due on or before
May 4, 2017.
DONE and ORDERED this 5th day of April, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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