Dues v. Capital One, NA

Filing 12

ORDER Adopting 11 Report and Recommendation and Granting 5 Motion to Dismiss filed by Capital One, NA, Signed by District Judge Thomas L. Ludington. (TJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

JAMES D. DUES,
Plaintiff,
v.

Case Number 11-CV-11808
Honorable Thomas L. Ludington

CAPITAL ONE, NA,
Defendant.
________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
AND GRANTING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on the report and recommendation (ECF No. 11) issued
by Magistrate Judge Charles E. Binder on August 8, 2011, on Defendant Capital One’s motion to
dismiss (ECF No. 5). Judge Binder recommends that the Court grant the motion to dismiss the
complaint of Plaintiff James Dues, which asserts claims for violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692(e), and the Michigan Collection Practices Act, Mich. Comp.
Laws § 445.252. Judge Binder recommends that the Court dismiss Plaintiff’s claim for a
violation of the Fair Debt Collection Practices Act because Defendant is not a “debt collector” as
defined by the Act, 15 U.S.C. § 1692a(6), and Plaintiff is not a consumer as defined by the Act,
15 U.S.C. § 1692a(3). Judge Binder further recommends that the Court decline to exercise its
supplemental jurisdiction over Plaintiff’s remaining state law claim.
As of today’s date, no party has filed any objections to Judge Binder’s report and
recommendation. The failure to file objections to the report and recommendation waives any
further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987). Likewise, the failure to object to the magistrate judge’s report releases the Court
from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985).
Accordingly, it is ORDERED that Judge Binder’s report and recommendation (ECF No.
11) is ADOPTED.
It is further ORDERED that Defendants’ to dismiss (ECF No. 5) is GRANTED.
It is further ORDERED that Plaintiff’s Fair Debt Collection Practices Act claim against
Defendant is DISMISSED WITH PREJUDICE.
It is further ORDERED that Plaintiff’s Michigan Collection Practices Act claim against
Defendant is DISMISSED WITHOUT PREJUDICE.

August 29, 2011
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 29, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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