Porter v. GMAC Homecomings Financials Network et al

Filing 56

ORDER ADOPTING 53 REPORT AND RECOMMENDATIONS and GRANTING Motion 52 for Judgment on the Pleadings. Signed by Judge Samuel H. Mays, Jr on 06/07/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LOLINA PORTER,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
GMAC MORTGAGE, LLC; AURORA
LOAN SERVICES LLC; and
GENWORTH MORTGAGE INSURANCE
CORPORATION,
Defendants.

No. 2:10-cv-02858-SHM-dkv

ORDER

Before

the

Court

is

the

Magistrate

Judge’s

Report

Recommendation dated August 15, 2016 (the “Report”).
53.)

and

(ECF No.

The Report recommends that the Court grant the Motion for

Judgment on the Pleadings pursuant to Rule 12(c)
12(c)

Motion”)

(“Aurora”)

on

filed
July

by

1,

Defendant

2016

(ECF

Aurora

No.

52)

Loan
and

(the “Rule

Services
that

LLC

Plaintiff

Lolina Porter’s complaint against Aurora be dismissed.
Porter did not respond to or otherwise oppose Aurora’s Rule
12(c) Motion.
Porter

filed

Rehearing

After the Report was entered, on August 31, 2016,
a

and

Recommendations

document
Motion
and

entitled,
to

Motion

“Plaintiff’s

Object
to

Deny

Proposed

Petition
Findings

Defendant’s

Motion

for
and
for

Judgment

on

the

Pleadings

and

Motion

to

Order

Defendant

to

Relinquish the Subject Property to Plaintiff Free and Clear and
Motion

to

Order

Defendant

Aurora

Loan

Services

Delinquent HOA Fees” (the “August 31 Filing”).
Aurora

has

not

responded

to

Porter’s

August

to

Pay

the

(ECF No. 54.)
31

Filing.

On

September 8, 2016, the Magistrate Judge entered an order denying
Porter’s August 31 Filing to the extent it serves as a petition
for rehearing,

but making no determination to the extent it

serves as objections to the Report.

(ECF No. 55.)

For the following reasons, the Report is ADOPTED and the
Rule 12(c) Motion is GRANTED.
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

also

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

v.

United

Baker

v.

“The district

judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”
P.

72(b)(3);

28

U.S.C.

§

636(b)(1).

After

Fed. R. Civ.
reviewing

the

evidence, the court is free to accept, reject, or modify the
magistrate
U.S.C.

judge’s

§ 636(b)(1).

proposed
The

findings

district

or

court

recommendations.
is

not

required

28
to

review -- under a de novo or any other standard -- those aspects
2

of the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
should

adopt

the

magistrate

judge’s

findings

which no specific objection is filed.
made

in

an

objection

to

a

The district court
and

Id. at 151.

magistrate

judge’s

rulings

to

Arguments
report

and

recommendation that were not first presented to the magistrate
for

consideration

are

deemed

waived.

See,

e.g.,

Becker

v.

Clermont Cty. Prosecutor, 450 F. App’x 438, 439 (6th Cir. 2011);
The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 (6th Cir.
2010); Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir.
2000).1
In the Report, the Magistrate Judge found that the “only
claims remaining against Aurora are for ‘deceptive practices,’
infliction of emotional distress, and ‘slander of title/slander
of credit,’ all of which Aurora seeks to dismiss in the [Rule
12(c) Motion].”

(ECF No. 53 at 2-3.)

1

The Magistrate Judge

A district court may raise the waiver issue sua sponte.
Numerous district courts in this circuit have done so where
(1) no response was filed to a party’s objection to the report
and recommendation; or (2) a response was filed, but did not
argue waiver.
See, e.g., Tighe v. Berghuis, No. 1:12-CV-1314,
2016 WL 5537287, at *3 (W.D. Mich. Sept. 30, 2016) (no response
to objection); Lewis v. Spitters, No. 1:14-CV-917, 2015 WL
5682405, at *2 (W.D. Mich. Sept. 18, 2015) (response did not
argue waiver); Briggs v. Miles, No. 1:13-CV-228, 2015 WL
1120132, at *2 (W.D. Mich. Mar. 12, 2015) (no response to
various objections); Bauman v. City of Cleveland, No. 1:04-CV1757, 2015 WL 893285, at *8 (N.D. Ohio Mar. 3, 2015) (response
did not argue waiver); Enyart v. Coleman, 29 F. Supp. 3d 1059,
1070 (N.D. Ohio 2014) (response did not argue waiver).
3

noted that Porter had not responded to the Rule 12(c) Motion and
that, at the time of the Report’s entry, the time for Porter to
file a response to the Rule 12(c) Motion had passed.
1.)

After

addressing

the

merits,

the

(Id. at

Magistrate

Judge

“recommended that Aurora’s [Rule 12(c) Motion] be granted in
full, and that Porter’s claims against Aurora be dismissed for
failure to state a claim upon which relief can be granted.”
(Id. at 9.)
In her August 31 Filing, Porter does not deny that she was
served with Aurora’s Rule 12(c) Motion or that she had adequate
time to respond before the Magistrate Judge entered the Report.
Porter offers reasons why she failed to timely respond to past
motions or discovery requests, but she offers no reason for her
failure in this instance.

(ECF No. 54 at 3-4.)

Because the

arguments Porter raises in her August 31 Filing were not first
presented

to

the

Magistrate

arguments are waived.

Judge

for

consideration,

those

See Becker, 450 F. App’x at 439; Glidden,

386 F. App’x at 544; Murr, 200 F.3d at 902 n.1.
Even had Porter not waived the arguments she now raises in
her August 31 Filing, those arguments do not specifically object
to any aspect of the Report’s findings of fact or conclusions of
law.

Porter makes general allegations about Aurora’s and other

Defendants’ unlawful conduct, asks for the return of the subject
property located at 6131 Woodstock View Drive in Millington,
4

Tennessee, and asks for other monetary relief, but Porter asks
that the Report be rejected without identifying any error in the
Report that warrants rejection or modification.
4-8.)

(ECF No. 54 at

Because Porter has failed to file specific objections to

the Report, adoption of the Report is warranted.

See Arn, 474

U.S. at 151.
For

the

foregoing

reasons,

the

Report

is

ADOPTED

and

Aurora’s Rule 12(c) Motion is GRANTED.2

So ordered this 7th day of June, 2017.

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

2

To the extent Porter’s August 31 Filing asks for additional
relief beyond asking for the Report to be modified or rejected,
those requests are DENIED as moot.
5