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Hooker v. Hooker

United States District Court, Western District of Tennessee, Western Division

January 12, 2015

MAL HOOKER, et al., Defendants.



Before the Court comes Defendant Funeral Directors Life Insurance Co.’s (“Defendant”) Motion for Summary Judgment filed on July 21, 2014. (ECF No. 87). Plaintiff filed two Responses in Opposition to Defendant’s Motion from August 14, 2014 to September 5, 2014. (ECF Nos. 92, 96). On September 20, 2013, this Court referred all pretrial matters within the Magistrate Judge’s jurisdiction pursuant to 28 U.S.C. § 636(b)(1)(A) for determination; and all other pretrial matters for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B-C). (ECF No. 50). On December 15, 2014, the Magistrate Judge issued his Report and Recommendation that Defendant’s Motion for Summary Judgment be granted. (ECF No. 105). To this date, neither party has filed objections with the Magistrate Judge’s Report and Recommendation.

For the following reasons, the Court finds the Magistrate Judge’s Report and Recommendation be ADOPTED and Defendant’s Motion for Summary Judgment GRANTED.


The parties filed no objections to the Magistrate Judge’s proposed facts. Therefore, the Court adopts the Magistrate Judge’s proposed findings of fact as the factual history. (ECF No. 105 at 1-5).


The district court has the authority to “designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion.” 28 U.S.C. § 636(b)(1)(B). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

The district court has appellate jurisdiction over any decisions the magistrate judge issues pursuant to such a referral. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72. The standard of review that is applied by the district court depends on the nature of the matter considered by the magistrate judge. See Fed R. Civ. P. 72(b)(3) (“The district judge must determine 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) (“A district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for nondispositive preliminary measures. A district court must review dispositive motions under the de novo standard.” (internal citations omitted)).


A. The Magistrate Judge’s Report and Recommendation

In his Report and Recommendation, the Magistrate Judge examined Defendant’s Motion for Summary Judgment. Specifically, the Magistrate Judge recommended that the Motion be granted as Plaintiff’s Complaint is untimely. (ECF No. 105 at 6-11).

Within a prior order of this Court, [1] the Court stated that the one-year statute of limitations “commenced no later than December 23, 2009, and that Plaintiff’s complaint, which was filed on April 1, 2011, ordinarily would be untimely.” (ECF No. 33 at 12). However, this Court found that Tennessee’s savings statute tolled Plaintiff’s claim upon the filing of a previous suit on September 15, 2010. Id.; Tenn. Code Ann. § 28-1-105(a); see also (ECF No. 87-8).

The Defendant’s Motion requested the case be dismissed contending that the claim is untimely and is not under Tennessee’s savings statute for two reasons: (1) the pro se filing by Reva Hooker is ineffective as to Plaintiff, and (2) a Tennessee Consumer Protection Act (“TCPA”) claim cannot reasonably be found within the original civil warrant. (ECF No. 87-1 at 6). Further, Defendant contends that Plaintiff is barred by the Doctrine of Accord and Satisfaction. Additionally, Defendant contends that Plaintiff cannot provide evidence of unfair or deceptive practices, an essential for a TCPA claim.

The Magistrate Judge recommends that the Tennessee’s savings statute of Tenn. Code Ann. § 28-1-105(a) does not apply in this context. The civil warrant filed by Plaintiff’s wife pro se could not be reasonably construed to include a TCPA claim and therefore could not trigger the savings statute. Primarily, the civil warrant filed in Shelby County General Sessions identifies the cause of action as “insurance policy” with no supporting factual allegations. (ECF Nos. 87-8; 105 at 8). The Magistrate Judge determined that such cause of action does not put Defendant on notice of a potential TCPA claim. (ECF No. 105 at 8). In the alternative, the Magistrate Judge determined that Plaintiff has failed to establish all elements of a TCPA ...

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