Durham v. Wofford

Filing 10

ORDER adopting 8 Report and Recommendation. Signed by Judge Jon Phipps McCalla on 11/27/2017. (McCalla, Jon)

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

DIANE DURHAM,
Plaintiff,
v.
PETER WOFFORD,
Defendant.

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Case No. 2:17-cv-2744-JPM-tmp

ORDER ADOPTING THE REPORT AND RECOMMENDATION

Before the Court is the Report and Recommendation filed by U.S. Magistrate Judge
Tu M. Pham on October 17, 2017. (ECF No. 8.) In the Report and Recommendation, the
Magistrate Judge recommends that Plaintiff Diane Durham’s Complaint be dismissed sua
sponte pursuant to Federal Rule of Civil Procedure 12(h)(3) for lack of subject matter
jurisdiction. (Id. at PageID 24.) The Magistrate Judge finds that:
In this case, in order to grant the remedies that Durham seeks, the court would
have to consider the validity of a state court judgement. The court could not
remove the judgment against Durham from public records, require compliance
with the residential lease, and grant the requested damages without
“review[ing] and reject[ing]” the state court ruling that allowed Wofford to
evict Durham. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005). In addition, Durham has not indicated that Wofford obtained the
judgement “through fraud, deception, accident, or mistake.” Int’l Christian
Music Ministry Inc., 289 F. App’x at 65 (quoting Sun Valley Foods Co., 801
F.2d at 189).
(Id. at PageID 23-24.) Accordingly, the Magistrate Judge finds that the Court lacks subject
matter jurisdiction pursuant to the Rooker-Feldman doctrine, which establishes that “lower

federal courts lack subject matter jurisdiction to engage in appellate review of state court
proceedings.” Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 460 (6th Cir. 2003)
(citations omitted).
On October 31, 2017, Plaintiff filed an objection to the Report and Recommendation.
(ECF No. 9.) Plaintiff states that she disagrees with the Report and Recommendation “due to
Retaliatory Conduct by the landlord” for a “situated documented by the police department that
[she] was the victim of and was not [her] fault.” (Id.) Additionally, Plaintiff contends that her
lease contains a clause that prohibits her landlord’s conduct. (Id.)
“Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2). “When no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Fed. R. Civ. P. 72(b) advisory committee note.
When a timely objection has been filed, “[t]he district judge must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3). The portions of a magistrate judge’s recommendation as to which no
specific objections were filed are reviewed for clear error. See Fed. R. Civ. P. 72(b) advisory
committee notes; Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991) (noting that when a party makes a general objection, “[t]he district court’s attention is
not focused on any specific issues for review, thereby making the initial reference to the
magistrate useless.”). “A general objection to the entirety of the magistrate’s report has the
same effects as would a failure to object.” Howard, 932 F.2d at 509. Moreover, the “failure

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to properly file objections constitutes a waiver of appeal.” See Howard, 932 F.2d at 508
(citing United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
Plaintiff’s objection to the Magistrate Judge’s Report and Recommendation does not
address the issue of subject matter jurisdiction. 1 (See ECF No. 9.) Accordingly, the Court
review’s the Report and Recommendation for clear error. See Fed. R. Civ. P. 72(b) advisory
committee notes.
On clear-error review of the Magistrate Judge’s Report and Recommendation, the
Court hereby ADOPTS the Report and Recommendation in its entirety.

Accordingly,

Plaintiff’s Complaint is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil
Procedure 12(h)(3) for lack of subject matter jurisdiction. This does not prevent Plaintiff from
appealing—to the appropriate state appellate court—the state court judgment that permitted
her landlord to evict her.
IT IS SO ORDERED, this 27th day of November, 2017.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT COURT JUDGE

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For example, Plaintiff does not contend that her landlord obtained the state court judgment
that allowed him to evict Plaintiff “through fraud, deception, accident, or mistake.” See Int’l
Christian Music Ministry Inc. v. Ocwen Fed. Bank, FSB, 289 F. App’x 63, 65 (6th Cir. 2008).
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