Garner v. Select Portfolio Servicing, Inc. et al

Filing 23

OPINION and ORDER Rejecting the Report and Recommendation Issued on February 2, 2015 7 as Moot, and Denying Without Prejudice Plaintiff's Request for a Preliminary Injunction. Signed by District Judge Mark A. Goldsmith. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARLENE GARNER,
Plaintiff,
vs.

Case No. 15-cv-10377
HON. MARK A. GOLDSMITH

SELECT PORTFOLIO SERVICING,
INC., et al.,
Defendants.
__________________________________/
OPINION AND ORDER REJECTING THE REPORT AND RECOMMENDATION
ISSUED ON FEBRUARY 2, 2015 (Dkt. 7) AS MOOT, AND DENYING WITHOUT
PREJUDICE PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION
Plaintiff Darlene Garner filed the Complaint in the above-captioned action on January 28,
2015. See Compl. (Dkt.1). Plaintiff brings this action against Defendants for “violation of the
fair debt collection practice[s] act, fraud and lack of standing to foreclose.” Id. The matter was
referred to Magistrate Judge David R. Grand for all pretrial proceedings.
As part of her Complaint, Plaintiff asked the Court to “[o]rder that the sheriff’s sale
scheduled for February 3, 2015 be halted/set aside pending the outcome of this lawsuit.” Id. at 8.
Out of an abundance of caution, Magistrate Judge Grand interpreted this broad request in the
Complaint as a request for a temporary restraining order (“TRO”). Accordingly, the Magistrate
Judge issued a Report and Recommendation (“R&R”) on February 2, 2015, recommending the
Court deny Plaintiff’s request for a TRO for a variety of reasons, including lack of notice and
insufficient pleadings. R&R (Dkt. 7).
Plaintiff submitted objections to the R&R thereafter. As part of her objections, Plaintiff
states that the Magistrate Judge “wrongly construed [her] complaint as [a] Motion for Temporary
Restraining Order.” Pl. Objs. at 2 (Dkt. 21). Plaintiff requests that, “[i]f the court must construe

my complaint as a Motion[,] please construe it as a Motion for Preliminary Injunction under
FRCP 65(A)(1).” Id.
In light of Plaintiff’s assertion that her Complaint was not seeking a TRO, the Court
rejects the R&R’s recommendation that the Court deny Plaintiff this relief. While the Magistrate
Judge may have appropriately construed Plaintiff’s statement in the Complaint as one seeking a
TRO, Plaintiff has now made clear that she was not seeking this relief. Accordingly, the Court
declines to consider whether a TRO would have been appropriate, and rejects the R&R as moot.
In her objections to the R&R, Plaintiff also requests that, “[i]f the court must construe
[the] complaint as a [m]otion,” the Court construe the Complaint as a motion for preliminary
injunction. See Pl. Objs. at 2. The Court declines to rule on the merits of this request for two
reasons. First, the Court need not construe Plaintiff’s Complaint as a motion, and, in light of
Plaintiff’s implication that she would prefer the Court not do so, the Court declines to construe it
as such. Cf. Fed. R. Civ. P. 7. Second, to the extent Plaintiff sought to combine her objections
and a motion for a preliminary injunction, objections to the R&R are not the appropriate vehicle
to seek a preliminary injunction; rather, Plaintiff must file a separate motion if she is asking the
Court to order this type of injunctive relief. See Delaney v. Tilton, No. 07-1219, 2008 WL
5411932, at *1 (E.D. Cal. Dec. 24, 2008) (“Plaintiff may not combine a motion with the
objections.”). In other words, combining objections to a R&R with a motion for affirmative
relief is improper. Accordingly, the Court denies without prejudice Plaintiff’s request for a
preliminary injunction.
SO ORDERED.
Dated: February 27, 2015
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on February 27, 2015.
s/Johnetta M. Curry-Williams
Case Manager

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