Halliday et al v. Frase et al

Filing 44

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 42 ; Defendant Kempker's Motion to Dismiss 37 is granted; Clerk of Court shall STRIKE Plaintiffs' proposed Amended Complaint 43 as improvidently filed; the Court discerns no good-faith basis for an appeal; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL R. HALLIDAY and
BEVERLY E. HALLIDAY,
Plaintiffs,
CASE NO. 1:18-CV-44
v.
HON. ROBERT J. JONKER
JANE FRASE, et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 42). The Report and Recommendation covers the same ground as the Report and
Recommendation the Court adopted earlier (ECF Nos. 36, 41), except that it focuses on moving
Defendant Kempker.

The Magistrate Judge recommends that the Court grant Defendant

Kempker’s Motion to Dismiss (ECF No. 37). The Report and Recommendation was duly served
on the parties. No proper objections have been filed under 28 U.S.C. § 636(b)(1)(C), and the
deadline for objection has passed. Accordingly, the Court approves and adopts the Report and
Recommendation as the opinion of the Court.
Plaintiffs did file an Amended Complaint (ECF No. 43). The Court had earlier denied
leave to file an amended complaint because Plaintiffs provided no basis for or explanation of the
proposed amendment. Plaintiffs still have not done so. The Court strikes the Amended Complaint
as improvidently filed.

The Amended Complaint was docketed as objections to the Report and Recommendation,
because Plaintiffs apparently insisted that the docket clerk describe the filing that way. The
description does not change the reality that the filing is not a proper objection to the Report and
Recommendation.1 Moreover, it does not change the original allegations in a way that would
change the outcome anyway. Fundamentally, Plaintiffs suffered a mortgage foreclosure because
they stopped paying on the loan and went into default. That basic fact is not in dispute. The
distorted legal objections Plaintiffs attempt to articulate fail to state an actionable legal claim for
the relief they seek.
ACCORDINGLY, IT IS ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (ECF No. 42) is

APPROVED AND ADOPTED as the opinion of the Court.
2.

Defendant Kempker’s Motion to Dismiss (ECF No. 37) is GRANTED.

3.

The Clerk of the Court shall STRIKE Plaintiffs’ proposed Amended Complaint

(ECF No. 43) as improvidently filed.
4.

For the same reasons that the Court dismisses Plaintiffs’ claims, the Court discerns

no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v.
Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997) (overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007)).
This case is DISMISSED.
Dated:

November 15, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

1

The Court also notes that failure to lodge specific objections is sufficient basis, standing alone, for this Court to
adopt the Magistrate Judge’s Report and Recommendation. See Cowherd v. Million, 308 F.3d 909, 912 (6th Cir.
2004) (“Generally, the failure to file specific objections to a magistrate’s report constitutes a waiver of those
objections.”).

2