Carter et al v. 21st Mortgage Corp.

Filing 14

ORDER ADOPTING 12 REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C § 1915. Signed by Judge Mark S. Norris on 9/9/2020. (Norris, Mark)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
JOEL CARTER and
CATRINA CARTER,
Plaintiffs,
v.

Case No. 2:20-cv-2454-MSN-tmp

21ST MORTGAGE CORP.,
Defendant.
______________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING COMPLAINT PURSUANT TO 28 U.S.C § 1915
______________________________________________________________________________
Before the Court is the Chief Magistrate Judge’s Report and Recommendation (“Report”).
(ECF No. 12.) The Report recommends that Plaintiffs’ Complaint be dismissed pursuant to 28
U.S.C. § 1915 for lack of subject matter jurisdiction. Plaintiffs timely filed objections to the Report
on September 8, 2020. (ECF No. 13.) For the reasons set forth below, Plaintiffs’ objections are
OVERRULED. The Report is ADOPTED, and Plaintiffs’ Complaint is DISMISSED for lack
of subject matter jurisdiction.
STANDARD OF REVIEW
Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by
permitting the assignment of district court duties to magistrate judges. See United States v. Curtis,
237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70 (1989));
see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been

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properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the
evidence, the court is free to accept, reject, or modify the magistrate judge’s proposed findings or
recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review—under a de
novo or any other standard—those aspects of the report and recommendation to which no objection
is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the
magistrate judge’s findings and rulings to which no specific objection is filed. See id. at 151.
Objections to any part of a magistrate judge’s disposition “must be clear enough to enable
the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50
F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is
to “focus attention on those issues . . . that are at the heart of the parties’ dispute.”). Each objection
to the magistrate judge’s recommendation should include how the analysis is wrong, why it was
wrong, and how de novo review will obtain a different result on that particular issue. See Howard
v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). A general objection, or
one that merely restates the arguments previously presented and addressed by the magistrate judge,
does not sufficiently identify alleged errors in the report and recommendation. Id. When an
objection reiterates the arguments presented to the magistrate judge, the report and
recommendation should be reviewed for clear error. Verdone v. Comm’r of Soc. Sec., No. 16-CV14178, 2018 WL 1516918, at *2 (E.D. Mich. Mar. 28, 2018) (citing Ramirez v. United States, 898
F. Supp. 2d 659, 663 (S.D.N.Y. 2012)); Equal Employment Opportunity Comm’n v. Dolgencorp,
LLC, 277 F. Supp. 3d 932, 965 (E.D. Tenn. 2017).

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DISCUSSION
As set forth in the Report, federal courts are courts of limited jurisdiction, and as such,
a federal court may exercise jurisdiction over a claim in two situations: “(1) in civil
actions between citizens of different states where the amount in controversy
exceeds $75,000, called diversity jurisdiction; and (2) in civil actions ‘arising under
the Constitution, laws, or treatises of the United States,’ referred to as federal
question jurisdiction.” Funderwhite v. Local 55, United Ass’n, 702 F. App’x 308,
311 (6th Cir. 2017) (citing 28 U.S.C. §§ 1331-1332).
(ECF No. 12 at PageID 37.)
The Report notes that the Complaint fails to allege the citizenship of Defendant and does
not allege damages in any amount. The Report states that the Complaint lists addresses for
Plaintiffs and Defendant, both of which are in Tennessee. Therefore, the Report concludes the
Complaint does not satisfy the requirements of diversity jurisdiction.
Additionally, the Report finds that the Complaint pertains to a disputed piece of real
property located in Tennessee and fraudulent conduct committed by Defendant.

However,

Plaintiffs do not allege that Defendant violated any specific right under a federal statute or the
Constitution, and therefore, there is no basis for federal question jurisdiction.
Plaintiffs objections fail to address to the deficiencies noted in the Report as to subject
matter jurisdiction. Plaintiffs objections state that they are pursuing a claim for $250,000,
remedying the lack of damages in their Complaint, but diversity jurisdiction is lacking because
there is still no basis for this Court to conclude that the parties are citizens of different states. In
fact, in the second paragraph of their objections, Plaintiffs seem to allege that Defendant is a citizen
of Tennessee. If Defendant is a citizen of Tennessee, diversity jurisdiction is lacking because
Plaintiffs appear to be citizens of Tennessee. Therefore, Plaintiffs objections do not overcome the
Report’s conclusions on diversity jurisdiction.

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Plaintiffs objections also fail to satisfy the requirements of federal question jurisdiction.
Plaintiffs objections vaguely assert that “[m]ortgage notes are suppose[d] to be governed by
Federal and State law,” but they do not cite any federal laws, and they reference only Title 47 of
the Tennessee Code, i.e. state law. They also assert “[c]onstitutional rights has been violated all
over the board,” but do not specify what constitutional rights have been violated or how. Finally,
they state “[w]e have a heading called the RICO ACT AND A ESTABLISHED ENTERPRISE
THAT HAS TO STOP,” but do not explain what this means or how it is related to their allegations.
Plaintiffs vague and conclusory objections are not enough to establish federal question jurisdiction.
Therefore, because Plaintiffs offer no basis to reject the Report’s conclusion regarding
subject matter jurisdiction, their objections are OVERRULED.
APPELLATE ISSUES
Title 28 U.S.C. § 1915(a)(3) provides that an appeal may not be taken in forma pauperis if
the trial court certifies in writing that an appeal would not be taken in good faith. The good faith
standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is
not taken in good faith if the issue presented is frivolous. Id. The same considerations that lead
this Court to dismiss Plaintiffs’ Complaint sua sponte also compel this Court to conclude that an
appeal by Plaintiffs would not be taken in good faith.
It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal by Plaintiffs
in this matter would not be taken in good faith and Plaintiffs may not proceed on appeal in forma
pauperis.
CONCLUSION
For the reasons set forth above, Plaintiffs’ objections are OVERRULED. The Report is
ADOPTED, and Plaintiffs’ Complaint is DISMISSED for lack of subject matter jurisdiction.

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IT IS SO ORDERED, this 9th day of September 2020.
s/ Mark S. Norris
MARK S. NORRIS
UNITED STATES DISTRICT JUDGE

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