Polyak v. Tennessee Attorney General et al

Filing 67

ORDER GRANTING 5 Motion to Dismiss filed by Roger Lesnansky, Vicky Lesnansky, ADOPTING 61 Report and Recommendation, GRANTING 6 Motion to Dismiss filed by Kyle Hulen, GRANTING 2 Motion to Dismiss filed by Wayne Hulen, Eloise Hulen, GRANTING [ 14] Motion to Dismiss filed by Janice Hulen Helton, Monte Helton, GRANTING 8 Motion to Dismiss filed by Roger Lesnansky, GRANTING 9 Motion to Dismiss filed by Debra Hulen Riddle, Larry Joe Riddle, GRANTING 7 Motion to Dismiss filed by Patricia Hulen, GRANTING 11 Motion to Dismiss filed by Patricia Hulen, GRANTING 4 GRANTING Motion to Dismiss filed by Molly Hulen, GRANTING 3 Motion to Dismiss filed by Murray Lesnansky, Gail Lesnansky, GRANTING 12 Motion to Dismiss filed by Nancy Hulen, Van G Hulen, GRANTING 13 Motion to Dismiss filed by Robert Woods, Joyce Hulen Woods, GRANTING 10 Motion to Dismiss filed by Kyle Hulen, Dora Lee Hulen, Frank Hulen Signed by District Judge Paul D Borman. (DGoo)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EARLANE POLYAK, Plaintiff, vs. TENNESSEE ATTORNEY GENERAL, et al., Defendants. __________________________________/ OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION IN FAVOR OF GRANTING DEFENDANTS' MOTION TO DISMISS, (2) REJECTING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, AND (3) DISMISSING THE ACTION Before the Court is Plaintiff Earlane Polyak's objections to Magistrate Judge Mona K. Majzoub's May 5, 2009 Report and Recommendation (Dkt. No. 61) in favor of granting defendants Wayne Hulen's, Eloise Hulen's, Murry Lesnansky's, Gail Lesnansky's, Molly Hulen's, Roger Lesnansky's, Vicky Lesnansky's, Kyle Hulen's, Patricia Hulen's, Estate of Wilma Lesnansky's, Larry Joe Riddle's, Deborah Hulen Riddle's, Estate of Frank Hulen's, Estate of Dora Lee Hulen's, Glenn Hulen's (deceased), Van G. Hulen's, Nancy Hulen's, Robert Woods', Joyce Hulen Woods', Monte Helton's, and Janice Hulen Helton's Motions to Dismiss for lack of personal jurisdiction and for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(3). (Dkt. Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14). The above-named defendants are collectively referred to as the "Served Defendants." Civil Case No. 08-14906 JUDGE PAUL D. BORMAN MAGISTRATE JUDGE MONA MAJZOUB

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On May 14, 2009, Plaintiff filed a handwritten response to the Report and Recommendation, in which, among other things, she requested sixty days to respond to the Report and Recommendation. (Dkt. No. 62). On June 2, 2009, the Court granted Plaintiff an extension until June 22, 2009 in which to file her objections. (Dkt. No. 63). But, on June 23, 2009, Plaintiff filed a Motion for a Thirty Day Extension to Respond to the Report and Recommendation. (Dkt. No. 64). The Court granted Plaintiff's request and set an amended deadline of July 22, 2009 for Plaintiff to file objections. (Dkt. No. 65). Again, in violation of the Court's order, Plaintiff filed objections to the Report and Recommendation on July 23, 2009--one day past the second amended deadline. (Dkt. No. 66). Setting aside Plaintiff's tardiness, the Court's de novo review of Plaintiff's objections, the Report and Recommendation, and the pertinent parts of the record under 28 U.S.C. 636(b)(1)(B) reveals that her objections are without merit. Plaintiff contends: (1) that Plaintiff has been denied her constitutional right to due process under the Fifth and Fourteenth Amendments, (2) that this Court enjoys proper federal subject matter diversity jurisdiction under 28 U.S.C. §1391; and (3) that Magistrate Judge Majzoub incorrectly denied Plaintiff's Michigan residency. Plaintiff, however, again failed to establish that this Court has proper personal, as opposed to subject matter, jurisdiction, over Defendants or that the Eastern District of Michigan is the proper venue for this cause of action. Accordingly, this Court cannot adjudicate Plaintiff's claims against the Served Defendants, and they must, therefore, be dismissed. In addition to the Served Defendants , Plaintiff's Complaint also names the Attorney General of Tennessee as a party to the suit. Plaintiff has failed to effect timely service on the Attorney General of Tennessee. See Fed. R. Civ. P. 4(e), (j). Therefore, Plaintiff's claims against the

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Attorney General of Tennessee also are dismissed. For these reasons, the Court: (1) ADOPTS the Magistrate Judge's Report and Recommendation in favor of granting Defendants' Motions to Dismiss; (2) DENIES Plaintiff's Objections to the Magistrate Judge's Report and Recommendation (Dkt. No. 61); and (3) (4) DISMISSES the Served Defendants WITH PREJUDICE; and DISMISSES the Attorney General of Tennessee WITHOUT PREJUDICE.

SO ORDERED. S/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: August 21, 2009 CERTIFICATE OF SERVICE Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on August 21, 2009. S/Denise Goodine Case Manager

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