Davis v. John Dingell VA Center

Filing 8

ORDER Adopting 5 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HERMAN L. DAVIS,
Plaintiff,
Case No. 17-13402
Hon. Terrence G. Berg
Magistrate Judge Mona K.
Majzoub

v.

JOHN DINGELL
VA CENTER,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
(DKT. 5)
This matter is before the Court on Magistrate Judge Mona
K. Majzoub’s June 12, 2018 Report and Recommendation (Dkt. 5),
recommending that Defendant’s Motion to Set Aside Default Judgment and to Dismiss Plaintiff’s Complaint (Dkt. 2) be granted
without prejudice. Plaintiff’s claim arises from a default judgment
he received against the government in state court, which the
United States Attorney’s Office then removed and challenged.
Dkt. 2. Plaintiff’s complaint alleges that the Defendant VA Center

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improperly billed him for medical care after failing to inform him
it did not accept Medicare. Dkt. 1-1 at Pg ID 8.
Plaintiff failed to respond to Defendant’s Motion to Set Aside
Default Judgment and Dismiss, which argued both that Defendant was not properly served and that Plaintiff failed to properly
allege the waiver of sovereign immunity necessary to assert his
claims, or to adequately plead those claims. Dkt. 2 at Pg ID 24-33.
Magistrate Judge Majzoub subsequently issued her Report
and Recommendation finding that Plaintiff had improperly served
Defendant; that the court lacked subject matter jurisdiction over
the dispute because the United States has not waived sovereign
immunity for suits for money damages like this one; and that
Plaintiff had failed to adequately state a claim. Dkt. 5 at Pg ID 4753.
The Court has reviewed the Magistrate Judge’s Report and
Recommendation. The law provides that either party may serve
and file written objections “[w]ithin fourteen days after being
served with a copy” of a report and recommendation.

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28 U.S.C. § 636(b)(1). The district court will make a “de novo determination of those portions of the report . . . to which objection is
made.” Id.
Plaintiff filed a Motion for Extension of Time to File Objections on June 22, 2018, which the court granted until July 6, 2018.
Plaintiff missed this deadline and failed to file any objections in a
timely manner. Consequently, the court will treat the R&R as one
without party objections. Under such circumstances the district
court is not obligated to independently review the record. See
Thomas v. Arn, 474 U.S. 140, 149-52 (1985). The Court will therefore accept the Magistrate’s Report and Recommendation of June
12, 2018—that Defendant’s Motion to Set Aside Default Judgment
and Dismiss be granted, and Plaintiff’s Complaint dismissed without prejudice—as this Court’s findings of fact and conclusions of
law.
Accordingly, it is hereby ORDERED that Magistrate Judge
Majzoub’s Report and Recommendation of June 12, 2018 is ACCEPTED and ADOPTED and that Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.
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SO ORDERED.
Dated: July 31, 2018

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed,
and the parties and/or counsel of record were served on July 31,
2018.
s/A. Chubb
Case Manager

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