Gilkey v. Wells Fargo Bank, N.A. et al

Filing 10

ORDER granting 6 Motion to Dismiss and adopting Report and Recommendations 8 . Signed by Judge S. Thomas Anderson on 8/15/13. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
JORY GILKEY,

)
)
Plaintiff,
)
)
v.
)
No. 12-2965-STA-cgc
)
WELLS FARGO BANK, N.A.;
)
OCWEN LOAN SERVICING;
)
HOMEQ SERVICING; AMERIQUEST )
MORTGAGE COMPANY; ARGENT
)
MORTGAGE COMPANY, LLC;
)
U.S. BANK NATIONAL
)
ASSOCIATION; WEISSMAN,
)
NOWALK, CURRY & WILCO, P.C.,
)
)
Defendants.
)
______________________________________________________________________________
ORDER OF DISMISSAL
______________________________________________________________________________
Before the Court is Defendants Wells Fargo Bank, N.A.; Ocwen Loan Servicing; and
Weissman, Nowalk, Curry & Wilco, P.C.’s Motion to Dismiss (D.E. # 6) filed on April 2, 2013. To
date Plaintiff Jory Gilkey, who is proceeding pro se, has failed to respond to Defendants’ Motion.
On June 5, 2013, the United States Magistrate Judge ordered Plaintiff to show cause (D.E. # 7) as
to why the Motion should not be granted. When Plaintiff failed to respond as ordered, the Magistrate
Judge issued her report and recommendation that Defendants’ Motion be granted and that the Court
dismiss Plaintiff’s remaining claims sua sponte pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff has
failed to file any objections to the Magistrate Judge’s Report within the time allowed. For the
reasons set forth below, the Court ADOPTS the Magistrate Judge’s Report and Recommendation,
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and Plaintiff’s Pro Se Complaint is DISMISSED.
BACKGROUND
Plaintiff filed a Pro Se Complaint on November 6, 2012, raising claims related to the
foreclosure of his home. In her Report and Recommendation, the Magistrate Judge concluded that
the Pro Se Complaint failed to state any claim for relief. As a general matter, Plaintiff’s is a
“shotgun” complaint in that it fails to plead with any specificity which Defendants committed which
of the acts alleged in the Complaint. As for the merits, the pleadings fail to allege any facts to state
why the foreclosure of Plaintiff’s property was unlawful. The Magistrate Judge construed Plaintiff’s
pleadings to suggest that Defendants had no legal right or authority to conduct foreclosure
proceedings because no Defendant continued to hold the promissory note. As the Magistrate Judge
correctly noted under Tennessee law “the transfer of a note automatically carries with it the lien
created by the deed of trust or other security instrument securing it.” Rep. & Recommendation 8.
Plaintiff’s Pro Se Complaint does not even allege that any transfer of his promissory note occurred.
Moreover, Plaintiff fails to allege in support of his fraud claim any misrepresentation of fact,
Defendants’ scienter, or any injury resulting from an alleged misrepresentation, much less allege
these elements with the requisite particularity. Finally, the Pro Se Complaint fails to allege any state
action or other acts which would implicate Plaintiff’s Fifth Amendment rights to due process.
Based on these defects, the Magistrate Judge recommended that Plaintiff’s Pro Se Complaint
be dismissed, reasoning that dismissal of the pro se pleadings was proper for the following reasons.
Defendants had filed a dispositive Motion pointing out the defects in the pleadings to which Plaintiff
never responded. When Plaintiff failed to respond to the Motion in a timely fashion, the Court
ordered Plaintiff to show cause order as to why the Motion should not be granted, and Plaintiff still
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failed to respond. For these reasons, dismissal without an additional opportunity to amend the
pleadings was justified. The Magistrate Judge further found that nothing in the record of the case
suggested that Plaintiff might be able to amend the Complaint and add factual allegations to support
his claims. The Magistrate Judge concluded that Defendants’ Motion to Dismiss should be granted
and that the claims against the remaining Defendants be dismissed for failure to state a claim
pursuant to § 1915(e)(2).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure,
a United States Magistrate Judge may hear a pretrial matter dispositive of a claim or defense and
enter a recommended disposition along with proposed findings of fact.1 A party may file specific
written objections to the Magistrate Judge’s proposed findings and recommendations within 14 days
after being served with a copy of the recommended disposition.2 The Court must “make a de novo
determination of those portions of the report or specific proposed findings or recommendations to
which objection is made.”3 After reviewing the record, the Court is free to accept, reject, or modify
the proposed findings or recommendations of the Magistrate Judge.4 Moreover, the Court need not
review, under a de novo or any other standard, those aspects of the report and recommendation to
which no specific objection is made.5 Rather, the Court may adopt the findings and rulings of the

1

28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1).

2

§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2).

3

§ 636(b)(1)(C).

4

Id.

5

Thomas v. Arn, 474 U.S. 140, 150 (1985).
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magistrate judge to which no specific objection is filed.6
ANALYSIS
The Magistrate Judge issued her Report and Recommendation on July 9, 2013, making any
objections to the Report due on or before July 26, 2013. To date Plaintiff has failed to file any
objections. In fact, Plaintiff has now failed to respond to Defendants’ Motion to Dismiss, the
Magistrate Judge’s show cause order, and the Report and Recommendation that Plaintiff’s case be
dismissed. It is true that the Magistrate Judge’s show cause order was sent to Plaintiff by certified
mail on June 7, 2013, but returned to the Clerk of Court as undeliverable on August 5, 2013.
However, pro se parties typically receive all filings in their cases by means of first class mail, and
none of the Court’s other orders or the papers filed by Defendants, including Defendant’s Motion
to Dismiss, have been returned as undeliverable. The fact then that the Magistrate Judge’s show
cause order was not delivered only shows that Plaintiff failed to retrieve his certified mail.
Additionally, even if Plaintiff no longer resides at his address of record and Plaintiff did not receive
a copy of other orders from the Court, it is Plaintiff’s duty to inform the Court of any change in his
contact information and to monitor the docket.7 Under the circumstances, the Court has no reason
to find that Plaintiff was not aware of Defendant’s Motion to Dismiss or the Magistrate Judge’s
Report and Recommendation.
Based on the Court’s review of the Pro Se Complaint, the Motion to Dismiss, and the entire
record of the case, the Court hereby ADOPTS the Report and Recommendation. Defendants’

6

Id. at 151.

7

Yeschick v. Mineta, 675 F.3d 622, 629–30 (6th Cir. 2012) (“Regardless of the method of
communication utilized (posted mail or email), it is the party, not the court, who bears the burden
of apprising the court of any changes to his or her mailing address.”).
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Motion to Dismiss is GRANTED. Plaintiff’s claims against the remaining Defendants are dismissed
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 15th, 2013.

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