United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court is the Magistrate Judge's Report and
Recommendation dated May 1, 2017 (the “Report”).
(ECF No. 12.) The Report recommends that the Court grant the
Motion for Summary Judgment (the “Motion”) filed
by Defendant Nationstar Mortgage Services
(“Nationstar”) on June 13, 2016 (ECF No. 11).
Neither party has filed objections to the Report, and the
dead line for doing so has passed. (Report 8.) For the
following reasons, the Report is ADOPTED and the Motion for
Summary Judgment is GRANTED.
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). “The district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
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. 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. Id. at 151.
the Motion, the Report states that Plaintiff Lo-lina Porter
“has failed to respond” and that her claims
“fail as a matter of law.” (Report 1, 8.) The
While Plaintiff's Complaint does not specifically allege
any causes of action, it appears that Plaintiff asserts (1)
the property was improperly foreclosed after she submitted a
modification application in violation of 12 C.F.R. §
1024.1 of the Real Estate Settlement Procedures Act
(“RESPA”); and (2) the notice requirements of
Tenn. Code Ann. § 35-5-101 were not satisfied so the
foreclosure sale is void.
(Id. at 3-4.)
Porter's RESPA claim, the Report states that “RESPA
expressly exempts credit transactions for business,
commercial, or agricultural purposes, ” including
mortgages to buy rental property. (Id. at 5; see
also id. at 5-6 (citing authorities).) The Report states
that, “[h]ere, it is undisputed that . . . Porter
obtained the [loan] at issue for purposes of purchasing
rental property, ” and thus finds that Porter's
RESPA claim fails as a matter of law. (Id. at 6.)
Porter's argument under section 35-5-101, the Report
lists the relevant notice requirements in section 35-5-101
and finds that Nationstar “has established that each of
these statutory requirements were satisfied.”
(Id. at 6-7 (citing SUF ¶¶ 8-9).)
Report requires that any objections be filed within fourteen
(14) days after service. (Id. at 8; see
also 28 U.S.C. § 636(b)(1) (“Within fourteen
days after being served with a copy [of the magistrate
judge's report], any party may serve and file written
objections to such proposed findings and recommendations as
provided by rules of court.”).) Because no party has
objected, Arn counsels the Court to adopt the Report
in its entirety. 474 U.S. at 151. Adopting the Report is
consistent with the policies underlying § 636 --
specifically, judicial economy and protecting against the
“functions of the district court [being] effectively
duplicated as both the magistrate and the district court
perform identical tasks.” Howard v. Sec'y of
Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
foregoing reasons, the Report is ADOPTED. The Motion is
only remaining defendants are John Does 1 through 10, 000.
John Doe pleading is permissible, but “a plaintiff
still must adhere to Rule 4(m) of the Federal Rules of Civil
Procedure, ” which establishes the deadline for serving
defendants with a summons. Shepherd v. Voitus, No.
4:14 CV 866, 2015 WL 4599609, at *1 (N.D. Ohio July 29, 2015)
(quoting Fed.R.Civ.P. 4(m)). Under Rule 4(m), Porter had 90
days from the filing of the complaint to serve any John Doe
defendant. The record reveals no service of any John Doe
defendants, and the Rule 4(m) deadline has passed. The action
is DISMISSED as to the John Doe defendants.