Breitmeyer et al v. CitiMortgage, Incorporated

Filing 11

ORDER Adopting 10 Report and Recommendation granting 3 Motion to Dismiss. Signed by District Judge Stephen J Murphy, III. (AGre)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JASON BREITMEYER, TRACEY BREITMEYER, Plaintiffs, v. CITIMORTGAGE, INC., Defendants. / ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION (docket entry 10) AND DISMISSING COMPLAINT This is an action involving a residential loan. Plaintiffs Jason and Tracey Breitmeyer filed a thirteen-count complaint against defendant, CitiMortgage, Inc., asserting violation of the Home Ownership and Equity Protection Act (HOEPA), 15 U.S.C. §§ 1639(b)(3) & (h) and the Truth In Lending Act (TILA), 15 U.S.C. § 1601 et seq., as well as various state law claims. The action was filed in Oakland County Circuit Court and removed to this Court by notice of removal filed by defendants on April 27, 2009. Before the Court is defendant's motion to dismiss, filed on June 10, 2009, and the Report and Recommendation of Magistrate Judge Mona K. Majzoub, filed on July 28, 2009. The magistrate judge's report and recommendation recommended that Count III and V of the Complaint be dismissed with prejudice and that the Court decline to exercise supplemental jurisdiction over the remaining state law claims and either remand to state court or dismiss without prejudice. The Magistrate Judge also notified the parties that any objections must be filed within ten days of service. No party has filed objections to the report and recommendations and the time for filing objections has lapsed.

Case No. 2:09-cv-11560 HONORABLE STEPHEN J. MURPHY, III

The Court's standard of review for a magistrate judge's report and recommendation depends upon whether a party files objections. If a party does not object to the report and recommendation, the Court does not need to conduct a review by any standard. Thomas v. Arn, 474 U.S. 140, 150 (1985). Because neither party filed timely objections to

Magistrate Judge Majzoub's report and recommendation, see 28 U.S.C. § 636(B)(1)(c); Fed. R. Civ. P. 6(e), this Court need not and will not conduct a review. "Where a case containing both federal and state law claims has been removed to this Court pursuant to the court's federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441, and the federal claims have been dismissed, this Court has discretion to either dismiss the remaining state law claims or to remand them." Jeung v. McKrow, 264 F. Supp. 2d 557, 572 (E.D. Mich. 2003) (citing Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 761 (6th Cir. 2000)). Because the plaintiffs have not sought remand of their state law claims in the event of dismissal of their federal claims or objected to the portion of the Report and Recommendation in which Magistrate Judge Majzoub recommends dismissal without prejudice as a course the Court may take if it declines to exercise supplemental jurisdiction, the Court will presume that the plaintiffs do not object to dismissal without prejudice. ACCORDINGLY, IT IS HEREBY ORDERED that the Report and Recommendation [docket entry 10] is ACCEPTED and ADOPTED as the opinion of this Court. IT IS FURTHER ORDERED that defendant's motion to dismiss [docket entry 3] is GRANTED as to Count III and Count V of the Complaint and the claims in those counts are DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over the remaining claims in the complaint, and those claims are DISMISSED WITHOUT PREJUDICE.

s/Stephen J. Murphy, III STEPHEN J. MURPHY, III United States District Judge Dated: October 30, 2009 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on October 30, 2009, by electronic and/or ordinary mail. Alissa Greer Case Manager

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