United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE CHIEF MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION AND ORDER OF DISMISSAL
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant Santander Consumer USA Inc.'s Rule
12(b)(6) Motion to Dismiss that was filed on March 2, 2018.
(ECF No. 19). On March 21, 2018, Johnson proceeding pro
se filed a response to which Santander filed a reply on
April 4, 2018. (ECF Nos. 20 & 21.) Pursuant to 28 U.S.C.
§ 1915(e)(2)(B), the matter was referred to the Chief
Magistrate Judge for screening and the administration of all
pretrial matters. On February 9, 2018, the Chief Magistrate
Judge issued a report and recommendation that the Court grant
Defendant's Rule 12(b)(2) motion to refer the case back
to the U.S. Bankruptcy Court and deny as moot the 12(b)(6)
motion to dismiss. (ECF Nos. 7, 10 & 14). After notice by
Santander that Plaintiff's bankruptcy case was dismissed
on February 16, 2018, the Chief Magistrate Judge issued a
second and superseding report and recommendation on April 6,
2018. (ECF Nos. 18 & 18-1.)To date, Plaintiff has not filed
any objections within the fourteen days allowed in accordance
with Fed.R.Civ.P. 72(b)(2). For the following reasons, the
undersigned Court finds that the Chief Magistrate Judge's
report and recommendation should be adopted in full and the
case dismissed with prejudice.
STANDARD OF REVIEW
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). When
a Magistrate Judge “submit[s] to a judge of the
[district] court proposed findings of fact and
recommendations, ” “any party may serve and file
written objections to such proposed findings and
recommendations as provided by rules of court.” 28
U.S.C. § 636(b)(1)(B)-(C). Courts are unwilling to
abrogate basic pleading standards in pro se actions.
Haines v. Kerner, 404 U.S. 519, 521 (1972) (per
curiam); Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989), reh'g denied, (Jan. 19. 1990). While
pro se litigants are not held to the same standard
as licensed attorneys, it is not the role of the court to
speculate about the nature of their claims. Estelle v.
Gamble, 429 U.S. 97, 106 (1976) and Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011).
Court may accept, reject, or modify, in whole or in part, any
findings or recommendations made by a Magistrate Judge.
Id. A Court need not review any portion of the
recommendation to which a plaintiff does not specifically
object and should adopt the findings and rulings of a
Magistrate Judge to which a specific objection is not filed.
Thomas v. Arn, 474 U.S. 140, 149-52 (1985) and
Brown, 47 F.Supp.3d at 674.
FINDINGS OF FACT
report and recommendation, the Chief Magistrate Judge
sufficiently summarizes that this action arises from
Plaintiff's purchase of a 2007 Chevrolet Tahoe from
CarMax on or about September 17, 2012. Plaintiff now attempts
to set aside the transaction based on several alleged
violations. (ECF 23-1 3-5.) Specifically, Plaintiff asserts
that Defendants committed various violations of the Truth in
Lending Act (“TILA”), Regulation Z, the Odometer
Act, Fraud and Misrepresentation via the
“deceptive use of a salesperson.” Plaintiff also
asserts that her self-produced promissory note, FTJB00002,
discharged the debt. After review, the Court adopts the Chief
Magistrate Judge's proposed findings of facts as the
factual history of this case. See U.S. v. Raddatz,
447 U.S. 667, 676 (1980) (In applying the de novo
standard, Congress afforded the district judge sound
discretion to rely on the Magistrate Judge's proposed
findings and determinations.)
The Statute of Limitations Bars
Chief Magistrate Judge initially recommends dismissal of
Counts III, IV, V, VII and IX as barred by the applicable
statutes of limitations for these claims. Plaintiff
reportedly purchased the automobile on September 17, 2012 and
subsequently filed her complaint in this case on December 28,
2017, over five years later. The Chief Magistrate Judge
concluded that Plaintiff's TILA and Regulation Z claims
are governed by the one year statute of limitations in 15
U.S.C. § 1640(e). Therefore, she recommends dismissal of
the TILA and Regulation Z claims in Counts III, V, and VII,
as untimely filed. Upon a de novo review, the claims
are clearly barred by the §1640(e) provision which
indicates that “. . . any action under this section may
be brought in any United States district court, or in any
other court of competent jurisdiction, within one year from
the date of the occurrence of the violation.”
Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797,
800 (6th Cir. 1996).
the Chief Magistrate Judge properly recommends dismissal of
Count IV of Plaintiff's complaint based on the three year
statute of limitations. The Court liberally construes Count
IV as a purported claim of fraud and misrepresentation
against Santander for receiving a down payment from Plaintiff
for the vehicle and including that amount in the total
purchase amount. Pursuant to Tenn. Code Ann. §§
28-3-105(1) and (2), actions for injuries to persons or real
property and an action for the conversion of personal
property must be commenced within three years of the accruing
event(s). Therefore, Plaintiff's conversion claim is also
barred by the statute of limitations.
report and recommendation, the Chief Magistrate Judge
correctly concludes that Plaintiff's claim in Count IX,
for Defendant's failure to provide a written odometer
disclosure is untimely and as such, should also be dismissed.
A claim arising under the Odometer Act must be filed no later
than 2 years after the claim accrues. See 29 U.S.C.
§ 32710(b) and Scherber v. Online Auctions,
LLC, No.3:13CV530, 2014 WL 3908114 at *2 (N.D. Ohio July
3, 2014). Therefore, this claim is also time barred.
Does Plaintiff's Promissory Note Discharge the
Chief Magistrate Judge recommends dismissal of
Plaintiff's assertion that the tender of a non-legal
promissory note discharged Plaintiff's debt for the
automobile purchase, Counts I and VII, as frivolous. The
Court agrees. A borrower may not absolve an obligation by
attempting to offer to pay the Defendant in a form other than
U.S. currency. Sopp v. Deutsche Bank Nat. Trust Co.,
No. 2:14-cv-01223, 2015 WL 136239 at *3 (S.D. Ohio 2015) and
Marvin v. Capital One, No. 1:15-cv-1310, 2016 WL
4548382 at *4 (W.D. Mich. Aug.16, 2016)(rejecting conspiracy
theories that ...