Smith et al v. JPMorgan Chase Bank NA et al
ORDER ADOPTING 43 REPORT AND RECOMMENDATIONS. The defendants' motion to dismiss 25 is GRANTED. The claims asserted by the plaintiffs in this case are DISMISSED in their entirety, with prejudice, for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(1)&(6). The Clerk is directed to CLOSE this case. This constitutes a final judgment for appeal purposes. Signed by Judge Ron Clark on 2/18/17. (ljw, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
BRIAN SMITH, et al.,
SELECT PORTFOLIO SERVICING, INC.,
LONG BEACH MORTGAGE LOAN
TRUST 2006-9, and CALIBER HOME
Civil Action No. 9:15-CV-00061-RC
ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE AND OF DISMISSAL
The Court referred this matter to United States Magistrate Judge Keith F. Giblin for
consideration and recommended disposition of case-dispositive pretrial motions. On January 31,
2017, Judge Giblin issued a Report and Recommendation (Doc. No. 43) in which he recommended
that the Court grant the defendants’ motion to dismiss and dismiss the plaintiffs’ claims in their
entirety for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules
of Civil Procedure 9(b) and 12(b)(1)&(6).
On February 10, 2017, the plaintiff Brian Smith submitted brief objections (Doc. No. 44)
and attached 57 pages of documents, most of which include documentation or correspondence
related to the mortgage transaction for Mr. Smith’s mother’s and stepfather’s residence made the
basis of this suit. Mr. Smith also submitted a separate packet of documents (Doc No. 45) entitled
“Damages” which outlines the categories of damages claimed by the plaintiffs and attaches over
fifty (50) pages of his mother’s medical records.
These filings do not discuss how the plaintiffs contend the magistrate judge specifically
erred in recommending dismissal. See 28 U.S.C. § 636(b)(1); Nettles v. Wainwright, 677 F.2d
404, 410 n.8 (5th Cir. 1982)(en banc)(“Parties filing objections must specifically identify those
findings objected to. Frivolous, conclusive or general objections need not be considered by the
district court.”) They merely reassert, through different disjointed handwritten statements,
contentions already presented to the Court in previous filings. The same general allegations were
before Judge Giblin when he made his findings and recommendation. Nothing in the plaintiffs’
recent submissions addresses the magistrate judge’s detailed findings and legal conclusions
regarding the plaintiffs’ lack of standing to bring suit and the clear pleading deficiencies presented
by the plaintiffs’ live complaint.
Accordingly, having considered the report of the magistrate judge, the plaintiffs’ objections
and “damages response”, and having conducted a de novo review pursuant to 28 U.S.C. § 636 and
Federal Rule of Civil Procedure 72, the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct. It is therefore ORDERED that the report and recommendation
of the magistrate judge (Doc. No. 43) is ADOPTED. The defendants’ motion to dismiss (Doc.
No. 25) is GRANTED. The claims asserted by the plaintiffs in this case are DISMISSED in their
entirety, with prejudice, for lack of subject matter jurisdiction and failure to state a claim pursuant
to Federal Rules of Civil Procedure 9(b) and 12(b)(1)&(6).
The Clerk is directed to CLOSE this case. This constitutes a final judgment for appeal
So Ordered and Signed
Feb 18, 2017
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