Trytko v. US Bank Home Mortgage

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS; GRANTING in its entirety 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and MOTION to Set Aside Default and DISMISSING Plaintiff's complaint in full, with leave to file an amended complaint wi thin 30 days of this Order; VACATING 11 the Clerk's entry of default; additionally DENYING AS MOOT 23 motion for default judgment; 33 , 35 , & 38 motions for a ruling on the issue of default judgment; 26 motion to strike Plaintiff's affidavit; and 29 motion to stay pending ruling on motion for summary judgment. *** Case terminated. Signed by Judge Jon E Guilio on 8/27/18. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PEGGY TRYTKO,

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Plaintiff,
v.
U.S. BANK HOME MORTGAGE,
Defendant.

Case No. 3:17-CV-175 JD

ORDER
Now before the Court is Defendant’s1 combined motion to vacate the Clerk’s entry of
default and motion to dismiss Plaintiff’s complaint. [DE 16] On April 27, 2018, the
undersigned referred this motion to Magistrate Judge Michael G. Gotsch, Sr., for a report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b),
and Northern District of Indiana Local Rule 72-1(b). [DE 39] Magistrate Judge Gotsch then
issued his report and recommendation on August 10, 2018, recommending that Defendant’s
combined motion be granted. [DE 40] As of this date, no party has filed an objection to the
report and recommendation.
The Court’s review of a Magistrate Judge’s report and recommendation is governed by
28 U.S.C. § 636(b)(1), which provides in part:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.

1
In the instant combined motion, Defendant identifies itself as U.S. Bank National Association and
indicates that it was incorrectly named in this lawsuit as U.S. Bank Home Mortgage.

1

Under Fed. R. Civ. P. 72(b), however, the Court must only make a de novo determination
of those portions of the Magistrate Judge’s report and recommendation to which specific written
objections have been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). If
no objection or only a partial objection is made, the Court reviews those unobjected portions for
clear error. Id. In addition, failure to file objections with the district court “waives the right to
appeal all issues addressed in the recommendation, both factual and legal.” Id. Under the clear
error standard, the Court can only overturn a Magistrate Judge’s ruling if the Court is left with
“the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Both 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) require the parties to file objections
to a report and recommendation within fourteen (14) days of being served with a copy of the
same, and the Magistrate Judge alerted the parties to these requirements in his filing. [DE 40 at
25] More than fourteen days have passed since the parties were served with Magistrate Judge
Gotsch’s report and recommendation and no party has filed an objection. Consequently, the
Court considers there to be no objections to it.
Having reviewed that report and recommendation [DE 40] and finding no clear error
therein, the Court hereby ADOPTS it in its entirety and incorporates Magistrate Judge Gotsch’s
recommendations into this Order. Accordingly, the Court now GRANTS Defendant’s motion
[DE 16] in its entirety. Specifically, the Court VACATES the Clerk’s entry of default [DE 11],
and DISMISSES Plaintiff’s complaint in full, with leave to file an amended complaint within
thirty (30) days of this Order.2

2
All of Plaintiff’s twelve actionable counts will be dismissed. As for Plaintiff’s thirteenth “count” for
“punitive damages,” while it may have survived substantively, as the Magistrate Judge explained, it
cannot survive without any underlying claims. [DE 40 at 25]

2

Additionally, with the entry of default now vacated, the Court DENIES the following
outstanding motions as moot:
Plaintiff’s motion for default judgment [DE 23];
Plaintiff’s motions for a ruling on the issue of default judgment [DE 33; DE 35;
DE 38];
Defendant’s motion to strike Plaintiff’s affidavit, attached to her reply in support
of default judgment [DE 26]; and
Plaintiff’s motion to stay pending ruling on her motion for default judgment. [DE
29]
SO ORDERED.
ENTERED: August 27, 2018

/s/ JON E. DEGUILIO
Judge
United States District Court

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