Davis v. Franklin American Mortgage Company et al

Filing 38

ORDER: Adopting 35 Report and Recommendations; Denying 22 Motion to Rescind Notice and Order of Removal; Denying as moot 36 Motion for Extension of Time to File Response/Reply; Denying as moot 37 Motion to Ascertain Status of Report and Reco mmendations; Denying as moot 14 Motion to Dismiss for Lack of Prosecution; Denying as moot 31 Motion to Dismiss; Granting 4 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/28/17. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION SAMUEL DAVIS, ) ) Plaintiff, ) ) v. ) ) FRANKLIN AMERICAN MORTGAGE ) COMPANY and J.P. MORGAN CHASE, ) N.A., ) ) Defendants. ) No. 3:16-cv-02819 Chief Judge Crenshaw ORDER After the Magistrate Judge entered a Report and Recommendation (“R & R”) (Doc. No. 35) on July 26, 2017, recommending that this case be dismissed and providing the parties fourteen days within which to file any objections, no objections were filed. Instead, on August 9, 2017, Plaintiff sent a letter to the Court titled “Request for Continuance and Answer” (Doc. No. 36), in which he claimed that he had suffered a stroke and requested that he be allowed three weeks within which to respond to the R & R. Eight weeks have passed since the Court received Plaintiff’s letter, and no objections have been filed. Nor were any objections filed after Defendants filed a Motion to Ascertain Status (Doc. No. 37) on September 9, 2017. Thus, the R & R stands unchallenged. Having conducted the de novo review required by Rule 72(b) of the Federal Rules of Civil Procedure, the Court agrees with the conclusions in the R & R that (1) Plaintiff does not allege a colorable claim of fraud against Franklin American Mortgage Company, making its joinder improper; (2) there is diversity of jurisdiction between Plaintiff and Morgan Chase, N.A., making 1 removal proper, and (3) Plaintiff’s claims against Morgan Chase, N.A. are barred by the doctrine of res judicata. Accordingly, the Court rules as follows: (1) The R & R (Doc. No. 35) is ADOPTED; (2) Plaintiff’s “Motion to Rescind Notice and Order of Removal” (Doc. No. 22) is DENIED; (3) Morgan Chase N.A.’s “Motion to Dismiss for Failure to State a Claim” (Docket No. 4) is GRANTED and this case is hereby DISMISSED WITH PREJUDICE; and (4) All remaining Motions (Doc. Nos. 14, 31, 36 & 37) are DENIED AS MOOT. The Clerk of the Court shall enter final judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure. IT IS SO ORDERED. __________________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE 2

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