Towner v. USAA Federal Savings Bank

Filing 89

ORDER ADOPTING 86 REPORT AND RECOMMENDATIONS - granting in part and denying in part 63 Motion for Summary Judgment; denying 64 Motion for Default Judgment; denying 71 Motion to Strike: Plaintiff's sole cause of action, the Fair Credit Reporting Act claim, is dismissed. Signed by Judge David Nuffer on 2/2/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MARK EDWARD TOWNER,
Plaintiff,

ORDER ADOPTING
REPORT & RECOMMENDATION

v.
Case No. 2:14-cv-00148-DN-DBP
USAA FEDERAL SAVINGS BANK doing
business as USAA FINANCIAL SERVICES,
Defendant.

District Judge David Nuffer
Magistrate Judge Dustin B. Pead

The Report & Recommendation 1 by United States Magistrate Judge Dustin B. Pead
issued on January 15, 2015, sets forth recommendations on several pending motions. 2 The
parties were notified of their right to file objections to the Report and Recommendation (R&R)
within fourteen (14) days of service pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal
Rules of Civil Procedure. As of the date of this order, no objections to the Report and
Recommendation have been filed.
On January 21, 2015, Plaintiff filed a memorandum 3 in support of the R&R. And on
January 29, 2015, Plaintiff filed a Motion 4 to Accept Report & Recommendations [86] with
Following Clarifications and Understanding. The two documents are identical. A review of
Plaintiff’s submitted documents reveals that Plaintiff is requesting legal advice, that is, he
1

Docket no. 86, filed January 15, 2015.

2

See Application for Default Judgment on USAA Federal Savings Bank Counterclaim, docket no. 64, filed
November 20, 2014; Motion to Strike USAA FSB’s November 20, 2014 Counterclaim, docket no. 71, filed
November 25, 2014; Defendant/Counterclaimant’s Motion and Memorandum in Support of Motion for Summary
Judgment, docket no. 63, filed November 14, 2014.
3

Memorandum in Support of Report & Recommendation [86] With Following Clarifications and Understanding,
docket no. 87, filed January 21, 2015.

4

Docket no. 88, filed January 29, 2015.

requests clarification on his understanding of the Magistrate Judge’s R&R. Pursuant to 28 U.S.C.
§ 636(b)(1), “[a] judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” Plaintiff
does not make any objections to any particular portion or specified findings or recommendations
of the R&R. While the Court is mindful of Plaintiff’s pro se status, “it is not the proper function
of the district court to assume the role of advocate for the pro se litigant[,]” and provide him
clarification on his understanding of the R&R. 5 Nor is it the function of the opposing party to
provide any clarification.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(3) of the Federal Rules of Civil
Procedure, the Court has reviewed de novo all materials, including the record that was before the
magistrate judge and the reasoning set forth in the Report and Recommendation. The Court
agrees with the analysis and conclusion of the magistrate judge, and adopts the Report and
Recommendation.
IT IS HEREBY ORDERED that:
(1) the Report and Recommendation is ADOPTED; 6
(2) Defendant’s Motion for Default judgment is DENIED; 7
(3) Plaintiff’s Motion to Strike USAA FSB’s November 20, 2014 Counterclaim is
DENIED; 8

5

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991); see also Martinez v. Court of Appeal of Cal., Fourth
Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (“[T]he trial judge is under no duty to
provide personal instruction on courtroom procedure or to perform any legal ‘chores' for the defendant that counsel
would normally carry out.”).
6

Docket no. 86.

7

Docket no. 64.

8

Docket no. 71.

2

(4) Defendant’s motion for summary judgment is GRANTED in part and DENIED IN
PART; 9
(5) Plaintiff’s sole cause of action, the Fair Credit Reporting Act claim, is DISMISSED.
Dated February 2, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

9

Docket no. 63.

3