Sandlin v. Citibank, N.A. et al

Filing 25

ORDER Adopting DE 24 Report and Recommendations; and Granting in Part and Denying in Part DE 22 Defendants' Motion to Dismiss. Signed by Judge John T. Fowlkes, Jr on 8/15/2016. (Fowlkes, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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JESSE SANDLIN,
)
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Plaintiff,
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v.
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No. 2:15-cv-02768-JTF-dkv
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CITIBANK, N.A.,
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and CITIMORTGAGE, INC.,
)
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Defendants.
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)
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION

Before the Court is Defendants’, Citibank, N.A. (“Citibank”) and CitiMortgage, Inc.
(CityMortgage”) (collectively “the Defendants”), Motion to Dismiss filed on April 21, 2016.
(ECF No. 22). This case was referred to the United States Magistrate Judge for management and
for all pretrial matters for determination and/or report and recommendation as appropriate.
(Admin. Order 2013-05, April 29, 2013). On July 21, 2016, the Magistrate Judge issued her
Report and Recommendation that Defendants’ Motion to Dismiss be granted in part and denied
in part. (ECF No. 24). The time for filing objections has passed, and none have been filed.
After reviewing de novo the Magistrate Judge’s Report and Recommendation,
Defendants’ Motion, and the entire record, the Court hereby ADOPTS the Magistrate Judge’s
Report and Recommendation.
I. FINDINGS OF FACT
This Court adopts the Magistrate Judge’s summary of the background and findings of
facts in this case. See (ECF No. 24).

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II. LEGAL STANDARD
A. Standard for District Court’s Review of a Report and Recommendation
The district court must review dispositive motions under a de novo standard. More
particularly, the district court determines de novo any part of the magistrate judge’s disposition
that has been properly objected to. Baker v. Peterson, 67 Fed. App’x 308, 310 (6th Cir. 2003).
Any party that disagrees with a magistrate judge’s recommendation may file written objections
to the report and recommendation. See Thomas v. Arn, 474 U.S. 140, 142 (1985). When a party
fails to timely object to a magistrate judge’s recommended decision, it waives any right to further
judicial review of that decision. Id at 149 n.7; United States v. Walters, 638 F.2d 947 (6th Cir.
1981).
B. Standard for Motion To Dismiss
When assessing a plaintiff’s claim at the Fed. R. Civ. P. 12 (b)(6) motion to dismiss
stage, the Sixth Circuit has stated that a complaint must allege sufficient facts to state a plausible
claim for relief, and that a reviewing court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012). “Pro se complaints are held to a less stringent standard than pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se litigants “are
not exempt from the requirements of the Federal Rules of Civil Procedure.” Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir.
2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading.”)
(internal quotation marks omitted).

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III.

ANALYSIS
Plaintiff filed a pro se complaint against the Defendants setting forth claims for: (1)

breach of contract; (2) slander of title; (3) violation of the Tennessee Consumer Protection Act
(“TCPA”); (4) declaratory relief; (5) fraudulent misrepresentation; and (6) intentional infliction
of emotional distress. (ECF No. 1). Defendants filed a motion to dismiss all of Plaintiff’s claims
except for the breach of contract claim. (ECF Nos. 22, 23). Plaintiff did not respond to the
motion to dismiss, and the time for response has expired.
The Magistrate Judge recommends that the following claims be dismissed: slander of
title; violation of the TCPA; and infliction of emotional distress. As noted above, and after de
novo review, the Court ADOPTS the Magistrate Judge’s recommendations. Thus, Plaintiff’s
breach of contract and fraudulent misrepresentation claims, as well as Plaintiff’s request for
declaratory relief remain.
IV. CONCLUSION
For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation.
IT IS THEREFORE ORDERED that Defendants’, Citibank and CitiMortgage, Motion to
Dismiss is hereby GRANTED in part and DENIED in part.
IT IS SO ORDERED on this 15th day of August, 2016.
s/John T. Fowlkes, Jr.
John T. Fowlkes, Jr.
United States District Judge

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