Etherly v. Rehabitat Systems of Michigan et al

Filing 54

ORDER Adopting 51 Report and Recommendation Dismissing as Moot 44 Motion to Strike filed by Tammy Etherly,Granting 45 Motion to Dismiss filed by Damon Huffman, Rehabitat Systems of Michigan, Carol Bence, Report and Recommendation. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAMMY ETHERLY,
Plaintiff,

Case No. 13-11360
Paul D. Borman
United States District Judge

v.

Laurie J. Michelson
United States Magistrate
Judge

REHABITAT SYSTEMS OF
MICHIGAN, DAMON HUFFMAN,
and CAROL BENCE,
Defendants.
__________________________________/

OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE MICHELSON’S
MARCH 4, 2014 REPORT AND RECOMMENDATION (ECF NO. 51),
(2) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 52),
(3) GRANTING DEFENDANTS’ MOTION TO COMPEL ARBITRATION (ECF NO. 45) and
(4) DISMISSING AS MOOT PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
ANSWER AND AFFIRMATIVE DEFENSES (ECF NO. 44)
Before the Court are Plaintiff’s Objections (ECF No. 52) to Magistrate Judge Michelson’s
March 4, 2014 Report and Recommendation (ECF No. 51). Defendants filed a Response to
Plaintiff’s Objections. (ECF No. 53.) This Court reviews de novo the portions of a report and
recommendation to which valid objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). A district “court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Having conducted a de novo review of the
parts of the Magistrate Judge’s Report and Recommendation to which valid objections have been
filed pursuant to 28 U.S.C. § 636(b)(1), the Court ADOPTS the Report and Recommendation,
DENIES Plaintiff’s Objections, GRANTS Defendants’ Motion to Compel Arbitration and
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DISMISSES AS MOOT Plaintiff’s Motion to Strike Defendants’ Answer and Affirmative Defenses.
I.

BACKGROUND
The Magistrate Judge adequately summarized the background of this case in her March 4,

2014 Report and Recommendation and the Court adopts that summary here. (ECF No. 51, Report
and Recommendation 2-5.)
II.

STANDARD OF REVIEW
A district court judge reviews de novo the portions of the report and recommendation to

which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district “court
may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” Id. Objections must be timely to be considered. A party who receives notice
of the need to timely object yet fails to do so is deemed to waive review of the district court's order
adopting the magistrate judge's recommendations. Mattox v. City of Forest Park, 183 F.3d 515,
519-20 (6th Cir. 1999). “[A] party must file timely objections with the district court to avoid
waiving appellate review.” Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987) (emphasis in original).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate's report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. An “objection” that does nothing more than disagree with a magistrate judge's
determination, “without explaining the source of the error,” is not considered a valid objection.

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Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Specific objections enable the Court to focus on the particular issues in contention. Howard,
932 F.2d at 509. Without specific objections, “[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court perform identical tasks. This duplication of
time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes
of the Magistrate’s Act.” Id.

“‘[O]bjections disput[ing] the correctness of the magistrate's

recommendation but fail[ing] to specify the findings [the objector] believed were in error” are too
summary in nature. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
III.

ANALYSIS
Plaintiff’s objections fail to specify the parts of the Magistrate Judge’s Report to which she

objects or to explain how the Magistrate Judge erred. This failure is basis enough to deny her
Objections. Even were the Court to generously construe her Objections as alleging that the
Magistrate Judge erred in concluding that there had not been a waiver by the Defendants of their
right to enforce the arbitration clause, the Court would deny the Objection and would conclude that
the Magistrate Judge correctly found that there had not been a waiver by the Defendants. “An
agreement to arbitrat[e] may be ‘waived by the actions of a party which are completely inconsistent
with any reliance thereon.’” Highlands Wellmont Health Network, Inc. v. John Deere Health Plan,
Inc., 350 F.3d 568, 574 (6th Cir. 2003) (quoting Gen. Star Nat'l Ins. Co. v. Administratia
Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir. 2002) (alteration added)). Although the Magistrate
Judge noted some procedural posturing by the Defendants prior to their actual demand for
arbitration, the Sixth Circuit has concluded that such posturing does not amount to a waiver where,
as here, there has been a consistent reference to the arbitration provision and an invocation of that

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provision early in the litigation. Highlands Wellmont, 350 F.3d at 574 (finding an initial refusal to
engage in alternative dispute resolution to be nothing more than “the typical posturing that may
occur where one party is attempting to “stare down” the other party in the hope that the other party
will simply give up”). Plaintiff makes no effort to distinguish Highlands Wellmont, on which the
Magistrate Judge relied in her Report, and cites to no evidence of action taken by Defendants’ that
was “completely inconsistent” with their intent to rely on the arbitration provision. Indeed,
Defendants have consistently referred to the arbitration agreement. Nor has Plaintiff provided
evidence of “actual prejudice” sufficient to sustain her conclusory claim of prejudice. The Court
finds that Magistrate Judge Michelson correctly concluded that Defendants did not waive their right
to enforce the parties’ agreement to arbitrate.
IV.

CONCLUSION
Accordingly, the Court DENIES Plaintiff’s Objections, ADOPTS Magistrate Judge

Michelson’s March 4, 2014 Report and Recommendation (ECF No. 51), GRANTS Defendants’
Motion to Compel Arbitration and Dismiss (ECF No. 45), and DISMISSES Plaintiff’s Motion to
Strike Defendants’ Answer and Affirmative Defenses as MOOT.
IT IS FURTHER ORDERED that, in lieu of staying the proceedings, this case is dismissed
without prejudice to the parties’ right to move to re-open this case for entry of an arbitration award
or for any other relief to which the parties may be entitled.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: June 6, 2014

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CERTIFICATE 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 June 6, 2014.

s/Deborah Tofil
Case Manager

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