Federal Home Loan Mortgage Corporation v. Lamie et al

Filing 36

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 29 , Motion to Dismiss 17 is GRANTED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FEDERAL HOME LOAN MORTGAGE
CORPORATION,
Plaintiff/Counter-Defendant,
v.

Case No. 1:11-cv-577
HON. JANET T. NEFF

ERVIN JOSEPH LAMIE, JR.,
Defendant/Counter-Plaintiff.
____________________________________/
OPINION AND ORDER
This matter is before the Court on Defendant/Counter-Plaintiff Ervin Lamie, Jr.’s1
(“Defendant”) objections to the Magistrate Judge’s Report and Recommendation (Dkt 30),
recommending that this Court grant Plaintiff/Counter-Defendant Federal Home Loan Mortgage
Corporation’s (“Freddie Mac”) Motion to Dismiss Counter Complaint and for Summary Judgment
on the Complaint. Freddie Mac has filed a Response to Defendant’s Objections (Dkt 32), and
Defendant has filed an “Objection to the Objections by the Counter Defendant”2 (Dkt 34). In

1

It is unclear from the record whether Defendant’s surname is properly spelled as Lamie or
LaMie. Both spellings have been used throughout the record. The Court relies on the spelling
docketed on the Court’s Electronic Court Filing docket.
2

Defendant’s “Objection to the Objections” are not properly before the Court since the local
rules do not permit such additional response and Defendant failed to obtain leave of the Court for
this additional filing. See W.D. Mich. LCivR 72.3(b). In any event, this Court has considered
Defendant’s filing, which essentially reiterates his previous objection, and finds nothing that alters
the analysis or disposition of this case. Further, Defendant’s procedural objections are without merit
because Freddie Mac’s Response was timely filed as a response to Defendant’s Objection; Freddie
Mac filed a Proof of Service; and Defendant clearly received the Response, since he references its
substance in his Objection to the Objections. See id.; see also Dkt 33.

accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de
novo consideration of those portions of the Report and Recommendation to which objections have
been made. Defendant’s objections are without merit.
The Magistrate Judge recommended that Freddie Mac’s Motion be granted on the basis of
res judicata in light of this Court’s previous dismissal of a related case, 1:11-cv-156. Defendant
raises three objections to the Magistrate Judge’s Report and Recommendation. Defendant’s first
objection reasserts allegations of a conspiracy to commit fraud and deprive him of his property by
Freddie Mac and several other parties, and emphasizes that he has so alleged in a subsequent lawsuit
(Dkt 30 at 3-8). This objection is without merit because as the Magistrate Judge pointed out, these
claims wholly fail to address the res judicata issue, which is the basis of Freddie Mac’s motion (Dkt
29 at 8). Further, as the Magistrate Judge observed, allegations of wrongdoing with respect to the
foreclosure “could and should have been raised in the prior action” (Dkt 29 at 7). Defendant has not
disputed this nor has he shown that the Magistrate Judge erred in this analysis. Rather, he merely
reasserts the fraud allegations. Accordingly, this objection is denied.
Defendant next objects that res judicata “does not apply here because all the parties
involved are not the same” (Dkt 30 at 5). However, Defendant’s argument is mistakenly premised
on his newly filed lawsuit, not the previous related action. Both Defendant and Freddie Mac were
involved in the prior action, and Defendant points to no facts calling into question the Magistrate
Judge’s conclusion that “both actions involve exactly the same parties and the same transactions”
(Dkt 29 at 8). Therefore, this objection is also denied.
Defendant’s third objection is that he has not had “ample opportunity to conduct discoveries
in this case” (Dkt 30 at 5). This objection is without merit because discovery is unnecessary to

2

resolve the preclusive effect of the prior case. Because Defendant’s claims are precluded by res
judicata and he has not established otherwise, this objection is also without merit.
Accordingly:
IT IS HEREBY ORDERED that Defendant’s Objections (Dkt 30) are DENIED and the
Report and Recommendation is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Dismiss Defendant’s CounterComplaint and Motion for Summary Judgment on its Complaint is (Dkt 17) GRANTED.

26
Dated: February ___, 2013

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge