United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford Magistrate Judge
ORDER OVERRULING OBJECTION  AND ADOPTING REPORT
AND RECOMMENDATION 
Honorable Laurie J. Michelson Judge
Kimdon Peters filed a pro se lawsuit following the
repossession of his vehicle. (R. 1.) All pretrial matters
were referred to Magistrate Judge Elizabeth A. Stafford. (R.
4.) The Defendants each filed motions to dismiss the
Complaint. (R. 14, 16, 17.) On January 25, 2017, Judge
Stafford filed her report and recommendation that the motions
be granted and the case be dismissed. (R. 59.) Peters timely
filed objections. (R. 60.) The Court is not persuaded by
Peters' objections and they will therefore be OVERRULED
and the report and recommendation ADOPTED. It follows that
Peters' claims based on the Fair Debt Collection
Practices Act, Section 1983, and federal and state criminal
statutes will be DISMISSED WITH PREJUDICE, and Peters'
other state-law claims will be DISMISSED WITHOUT PREJUDICE.
STANDARD OF REVIEW
the report and recommendation resolved a dispositive issue,
this Court conducts a de novo review of those
portions to which Fields has objected. 28 U.S.C. §
636(b); United States v. Curtis, 237 F.3d 598, 603
(6th Cir. 2001). The Court need not perform a de
novo review of the Report's unobjected-to findings.
See Schaefer v. Modelski, No. 13-CV-13669, 2014 WL
3573270, at *1 (E.D. Mich. July 21, 2014) (“Although a
court must review timely objections to a magistrate
judge's report and recommendation, a court may adopt,
reject, or amend the portions of a report and recommendation
to which no party properly objects.” (citing
Fed.R.Civ.P. 72(b)(3); Thomas v. Arn, 474 U.S. 140,
150 (1985))); Garrison v. Equifax Info. Servs., LLC,
No. 10-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr. 16,
2012) (“The Court is not obligated to review the
portions of the report to which no objection was made.”
(citing Arn, 474 U.S. at 149- 52)).
Court can largely dispose of Plaintiff's objections by
emphasizing that the Magistrate Judge's ruling was based
on Plaintiff's failure to comply with the various
statutes of limitations applicable to Plaintiff's federal
claims (R. 58, PID 691-92), and her conclusion that without
the federal claims, the Court should not exercise
supplemental jurisdiction over the state-law claims (R. 59,
PID 693). Most of Plaintiffs' objections
“improperly conflate the statute of limitations,
” and the related propriety of supplemental
jurisdiction, “with the merits of the claim.”
Peabody Coal Co. v. Dir., 718 F.3d 590, 594 (6th
Cir. 2013). Plaintiff first objects that he “has met
his burden of proof” with respect to various aspects of
his constitutional, FDCPA, and state-law debt-related claims.
(R. 60, PID 699-700.) Plaintiff next claims that
“[t]his Court and all Defendant's Counsel of Record
have recognized that there was willful gross negligent civil
and criminal act's committed by Defendant Michael
Priza[.]” (R. 60, PID 699.) Plaintiff next claims that
PAR's former counsel “has stipulated that it is for
the Court to decide whether a ‘forwarding company'
that is not licensed directly affects commerce, and violates
(FDCPA) and State Law. (R. 60, PID 701.) Plaintiff next
argues that he “has met his burden of proof that . . .
514 U.S. 291 (1995), ” a case regarding the FDCPA,
“is unconstitutional on its face.” (R. 60, PID
703.) All of these arguments implicate the merits of
Plaintiff's various claims in this lawsuit, but do not
challenge the Magistrate Judge's findings regarding the
statutes of limitation for the federal claims or the
propriety of supplemental jurisdiction for the state-law
claims. Nor does Plaintiff's argument that he “has
standing to bring action under 42 U.S.C. § 1983”
(R. 60, PID 701) affect the Magistrate Judge's conclusion
that the claim is untimely.
Court agrees with the Magistrate Judge's conclusions
regarding the statutes of limitations and the propriety of
supplemental jurisdiction. The FDCPA statute of limitations
is one year, 15 U.S.C. § 1692k(d),  and the Section
1983 statute of limitations is three years, see Carroll
v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986). The Sixth
Circuit has stated that “a motion under Rule 12(b)(6),
which considers only the allegations in the complaint, is
generally an inappropriate vehicle for dismissing a claim
based upon the statute of limitations, ” unless
“the allegations in the complaint affirmatively show
that the claim is time-barred.” Cataldo v. U.S.
Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). Here,
the documents Plaintiff attached to his complaint clearly
indicate that the event giving rise to his claims occurred in
August 2010 (R. 1, PID 44), but Plaintiff did not file suit
until August 2016 (R. 1). Accordingly, these claims are
barred by the proper statutes of limitations, and Peters puts
forth no argument for equitable tolling in his objections.
The Court clarifies, however, that Section 1983's statute
of limitations is not jurisdictional, see Williams v.
Henderson, 626 F. App'x 761, 763 n.3 (10th Cir.
2015); Smith v. City of Chi. Heights, 951 F.2d 834,
839 (7th Cir. 1992); Krug v. Imbordino, 896 F.2d
395, 396 (9th Cir. 1990), and while the Sixth Circuit has
declined to reach the issue, see Fillinger v.
Lerner Sampson & Rothfuss, 624 F. App'x 338, 340
(6th Cir. 2015), courts disagree on whether the FDCPA's
statute of limitations is jurisdictional, compare Hageman
v. Barton, 817 F.3d 611, 616 (8th Cir. 2016) (holding
that the FDCPA statute of limitations is jurisdictional)
with Mangum v. Action Collection Serv., Inc., 575
F.3d 935, 940 (9th Cir. 2009) (holding it is not
jurisdictional) and Marshall-Mosby v. Corp. Receivables,
Inc., 205 F.3d 323, 327 (7th Cir. 2000).
the Court will not exercise supplemental jurisdiction to
adjudicate Plaintiff's state-law claims. “District
courts have broad discretion to exercise supplemental
jurisdiction, and their decision ‘depends on judicial
economy, convenience, fairness, and comity.'”
Aldini v. Kroger Co. of Mich., 628 F. App'x 347,
352 (6th Cir. 2015) (quoting Carmichael v. City of
Cleveland, 571 Fed. App'x 426, 434 (6th Cir. 2014)).
“When all federal claims are dismissed before trial,
the balance of considerations usually will point to
dismissing the state law claims, or remanding them to state
court if the action was removed.” Musson Theatrical
v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir.
1996). Because the Court agrees that the federal claims are
stale and will not exercise supplemental jurisdiction in
their absence, Plaintiff's objections regarding the
merits of those claims are irrelevant and will be OVERRULED.
sole argument regarding the statute of limitations (for any
claim) is that the statute of limitations for his state-law
claims for conversion of property should be six years under
the Uniform Commercial Code (UCC). (R. 60, PID 702.) First,
the UCC's statute of limitations is actually four years.
See Mich. Comp. Laws Serv. § 440.2725. Second,
the Court has already found that the Magistrate Judge's
conclusions regarding the applicable statutes of limitations
for Plaintiff's federal claims were correct, and has
declined to exercise supplemental jurisdiction over the state
claims. Accordingly, this objection is OVERRULED.
Plaintiff says that the report and recommendation to dismiss
is “untimely” because PAR had not yet filed a
response to Plaintiff's motion to amend his complaint
when the report and recommendation was filed. (R. 60, PID
704.) But Plaintiff did have the chance to present arguments
in support of his motion to amend-in his initial motion. Had
PAR responded, it is true that Plaintiff would have had the
opportunity to file a reply brief. E.D. Mich. LR 7.1(d).
However, “[a] reply brief is not a place to make new
arguments[.]” Covenant Med. Ctr., Inc. v.
Burwell, 603 F. App'x 360, 363 (6th Cir. 2015)
(citing Kuhn v. Washtenaw County, 709 F.3d 612, 623
(6th Cir. 2013)). If Plaintiff had any issue with the
Magistrate Judge's conclusion that his proposed amendment
would be futile, he could have raised it in his objections.
And the Court has already found that the objections Plaintiff
did raise were unpersuasive. Therefore, this objection will
reasons set forth above, Plaintiffs' objections are
OVERRULED. The Report and Recommendation is ADOPTED. It
follows that Plaintiff's motions for injunctive relief
and to amend the complaint (R. 34, 35, 36, 37, 53) are
DENIED. Defendants' motions to dismiss (R. 14, 16, 17)
are GRANTED. Plaintiff's claims under the FDCPA, Section
1983, and federal and state criminal ...