United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION RE  MOTION TO DISMISS, AND MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM,  AND , AND
ORDER GRANTING  MOTION TO DISMISS AND DISMISSING CASE
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.
10, 2015, Plaintiff Littleton Price, proceeding pro
se, filed a complaint for damages and an application for
injunctive and declaratory relief in the United States
District Court for the Southern District of New York. The
complaint alleged, inter alia, securities fraud in
reference to a mortgage loan in violation of 15 U.S.C.
§§ 77a-77m and 15 U.S.C. § 78a. (ECF No. 1).
On August 9, 2016, the case was transferred to this district.
(ECF No. 73). On September 1, 2016, Defendants, Countrywide
Home Loan and Mortgage Electronic Registration Systems, Inc.,
(“MERS”), filed a Motion to Dismiss. (ECF No.
81). Similarly, on September 12, 2016, Defendant Bank of New
York Mellon, (f/k/a Bank of New York), and on October 5,
2016, Defendant Wilson and Associates, PLLC filed Motions to
Dismiss. (ECF Nos. 82 and 86). The matter was referred to the
Magistrate Judge for report and recommendation or
determination of all pretrial matters pursuant to 28 U.S.C.
§§ 631-639. On December 12, 2016, the Magistrate
Judge issued a Report and Recommendation that the Court grant
all of the Defendants' motions to dismiss under the
doctrine of res judicata to which the Plaintiff
filed objections on December 28, 2016. (ECF Nos. 87 and 89).
On January 11, 2017, Bank of New York Mellon, f/k/a, The Bank
of New York filed a Response to Plaintiff's Objections to
the Magistrate Judge's report and recommendation. (ECF
December 23, 2016, Defendant First Bank Mortgage, Inc. filed
a Motion to Dismiss that the Court will address without
referral to the Magistrate Judge. (ECF No. 88). Pursuant to
LR 12.1, the time allowed for responding to First Bank
Mortgage's motion to dismiss has expired. To date,
Plaintiff has not filed his response in opposition to the
following reasons, the Court finds the Magistrate Judge's
report and recommendation, ECF No. 87, should be adopted,
Plaintiff's Objections thereto overruled, and all of the
motions to dismiss should be Granted.
passed 28 U.S.C. § 636(b) “to relieve some of the
burden on the federal courts by permitting the assignment of
certain district court duties to magistrates.” See
e.g. Baker v. Peterson, 67 Fed. App'x. 308, 311,
2003 WL 21321184 (6th Cir. 2003) and Fed.R.Civ.P. 72(a). A
United States District Judge may refer certain dispositive
pretrial motions to a United States Magistrate Judge for
submission of proposed findings of fact and conclusions of
law, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C);
Brown v. Wesley Quaker Maid, Inc., 771 F.2d 952, 957
(6th Cir. 1985). The District Court Judge may accept, reject,
or modify in whole or in part, the Magistrate Judge's
proposed findings and recommendations. While most actions by
a Magistrate Judge are reviewed for clear error, dispositive
recommendations to the District Court Judge are reviewed
de novo. Thomas v. Arn, 474 U.S. 140,
party who disagrees with a Magistrate Judge's
recommendation must file written objections to the report and
recommendation. Thomas, 474 U.S. at 142;
Fed.R.Civ.P. 72 (b); 28 U.S.C. § 636(b)(1)(C) and LR
72.1(g)(2). When a party fails to timely object to a
Magistrate Judge's recommended decision, it waives any
right to further judicial review of that decision.
Id. at 149 n.7, and United States v.
Walters, 638 F.2d 947 (6th Cir. 1981). Therefore, a
District Judge should adopt the findings and rulings of the
Magistrate Judge to which a specific objection is not filed.
Brown v. Board of Educ. of Shelby County Schools, 47
F.Supp.3d 665, 674 (W.D. Tenn. 2014). “Pro se
complaints are to be held “to less stringent standards
than formal pleadings drafted by lawyers, and should
therefore be liberally construed. . . . Pro se litigants,
however, are not exempt from the requirements of the Federal
Rules of Civil Procedure.” Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989).
Magistrate Judge's report and recommendation offers
proposed findings of fact in reference to the motions to
dismiss filed by Defendants, Countrywide Home Loan and MERS,
Defendant Bank of New York and Defendant Wilson and
Associates, PLLC. (ECF No. 87, pp. 2-4). As noted, Plaintiff
filed objections on December 28, 2016. (ECF No. 89, p. 1).
However, the Court finds Plaintiff's objections fail to
address the factual findings of the report and
recommendation. Arn, 474 U.S. at 148. As such, the
Court adopts the Magistrate Judge's proposed findings of
fact as the factual summary of this case.
Motions Addressed in the Report and Recommendation
(ECF No. 81, 82 & 86)
report and recommendation, the Magistrate Judge recommended
that the Court grant the Defendants' Countrywide Home
Loan and MERS, Defendant Bank of New York, and Defendant
Wilson and Associates, PLLC's motions to dismiss based on
the doctrine of res judicata. Applying the four-part
test of Rawe, the Magistrate Judge determined that
these claims arise under the same set of facts, involve the
same parties, and have been previously litigated in both a
federal and state court action wherein both courts reached a
final determination. See Rawe v. Liberty Mut.
Fire Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006).
The Magistrate Judge concluded that this action is barred by
res judicata. (ECF No. 87). See Gutierrez v.
Lynch, 826 F.2d 1534, 1537 (6th Cir. 1986). The Court
February 29, 2012, Plaintiff filed a prior action in this
Court against the Defendants ReconTrust Company, N.A. and
Bank of New York Mellon (“BNYM”) in reference to
the mortgage loan and pending foreclosure of his property
located at 4810 East Shore Drive, Memphis, Tennessee. See
Price v. ReconTrust Company, N.A. et al, Case No.
2:12-cv-2170-JTF-cgc. At the time, BNYM was the mortgage
lender or holder of the loan on the real property at issue,
while ReconTrust was the substitute trustee of
Plaintiff's deed of trust. (Case No. 12-cv-2170, ECF No.
1, ¶¶ 1-4). Plaintiff alleged claims of fraud,
breach of contract and fiduciary duty, and requested that the
Court set aside the foreclosure action. He also claimed that
the loan agreement failed for lack of consideration, having
been secured by Federal Reserve notes which he claimed
“[were] not money by law.” (ECF No. 1, p. 7). On
February 19, 2013, the undersigned Court granted the
Defendants' Rule 12(b)(6) motion to dismiss. Reviewed
under the lenient standards allowed pro se
complaints, the Court concluded that the complaint failed to
adequately allege fraud or breach of contract against the
Defendants pursuant to Fed.R.Civ.P. 8, 9(b) and 12(b)(6).
(ECF No. 12).
February 26, 2014, Bank of New York Mellon, filed an action
in the Circuit court of Shelby County, Tennessee for the
Thirtieth Judicial District against Littleton
Price. Following a non-jury trial, the Court
entered a final judgment for Plaintiff on January 22, 2015,
finding that Defendant Price had executed and defaulted on a
mortgage loan on the East Shore property. The loan had been
secured by a deed of trust properly owned by the Plaintiff.
The Court found that following the foreclosure proceeding,
the deed of trust was properly held by the substitute
trustee. The Court also determined that Defendant's