Porter v. GMAC Homecomings Financials Network et al
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
GMAC MORTGAGE, LLC; AURORA
LOAN SERVICES LLC; and
GENWORTH MORTGAGE INSURANCE
Recommendation dated August 15, 2016 (the “Report”).
The Report recommends that the Court grant the Motion for
Judgment on the Pleadings pursuant to Rule 12(c)
Lolina Porter’s complaint against Aurora be dismissed.
Porter did not respond to or otherwise oppose Aurora’s Rule
After the Report was entered, on August 31, 2016,
Relinquish the Subject Property to Plaintiff Free and Clear and
Delinquent HOA Fees” (the “August 31 Filing”).
(ECF No. 54.)
September 8, 2016, the Magistrate Judge entered an order denying
Porter’s August 31 Filing to the extent it serves as a petition
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.
See United States v. Curtis,
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).
judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”
Fed. R. Civ.
evidence, the court is free to accept, reject, or modify the
review -- under a de novo or any other standard -- those aspects
of the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
which no specific objection is filed.
The district court
Id. at 151.
recommendation that were not first presented to the magistrate
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.
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
(ECF No. 53 at 2-3.)
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
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).
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.
“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.)
arguments Porter raises in her August 31 Filing were not first
arguments are waived.
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
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,
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.
(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.
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
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.
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