Dailey et al v. Chase Mortgage Company et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 7-7-10. (ga)

-NMK Dailey et al v. Chase Mortgage Company et al

Doc. 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

MINISTER SCOTT DAILEY, et al., Plaintiffs, vs. CHASE MORTGAGE COMPANY, et al., Defendants. OPINION and ORDER Plaintiffs, who are proceeding without the assistance of counsel, bring this action challenging their eviction from their Civil Action 2:10-cv-517 Judge Smith Magistrate Judge King

resid e n c e , ordered as part of state court foreclosure proceedings. Named as defendants are Chase Mortgage Company and the Franklin County Court of Common Pleas. Complaint, attached to Doc. No. 1; Amended

Complaint , Doc. No. 5. On June 7, 2010, the United States Magistrate Judge recommended that the action be dismissed for failure to allege subject matter jurisdiction as required by Rule 8(a) of the Federal Rules of Civil Procedure. Doc. No. 3. Initial Screening Report and Recommendation,

This matter is now before the Court on plaintiffs'

objections to that Report and Recommendation , which the Court will consider de novo. See 28 U.S.C. §636(b); Fed. R. Civ. P. 72.

In their objections, Doc. No. 4, plaintiffs expressly invoke the Court's federal question jurisdiction, 28 U.S.C. §1331, and allege that t hey "were never heard in Franklin County Court. Plaintiffs allege a This suit

[v]iolation of the United States Constitution 14th Amendment. is an Original Action." also filed an amended Objection, p. 3, Doc. No. 4. complaint in which they

Plaintiffs have claims of

assert

"misfeasance," "retaliation per R.C. 5321.02," "nonfeasance," "passive

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negligence," "unjust enrichment," "abuse of process" and "color of law misuse of power" against the two named defendants. Amended Complaint, Doc. No. 5. The Amended Complaint seeks recovery of damages.

T his Court agrees with the Magistrate Judge that this action, regardless of plaintiffs' characterization of their claims, reflects a c hallenge to actions taken in the state court foreclosure action. As

the Magistrate Judge noted, however, this Court lacks jurisdiction to entertain that challenge. See Exxon Mobil Corp. v. Saudi Basic Inds.

Corp ., 544 U.S. 280, 284 (2005); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). To the extent that plaintiffs disagree with any aspect of

t he state court proceedings, their sole remedy is to pursue an appeal from the actions taken in those proceedings. Accordingly, plaintiffs' objections to the Report and

Recommendation , Doc. No. 4, are DENIED. is ADOPTED and AFFIRMED .

The Report and Recommendation

This action is hereby DISMISSED for lack of

subject matter jurisdiction. The Clerk shall enter FINAL JUDGMENT. Moreover, the Court

concludes that an appeal from the final judgment would not be taken in good faith. See 28 U.S.C. §1915(a).

s/George C. Smith George C. Smith, Judge United States District Court

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