United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND TIME
, OVERRULING PLAINTIFF'S OBJECTIONS , ADOPTING
REPORT AND RECOMMENDATION , GRANTING IN PART AND DENYING
IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
, GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY
JUDGMENT , DENYING PLAINTIFF'S MOTIONS TO STRIKE [49,
58], AND DENYING DEFENDANTS' MOTION TO STRIKE
STEPHEN J. MURPHY, III United States District Judge
LaKisha Smith brought a claim against Defendants Comcast
Corporation, Comcast of Detroit, LLC, and Stellar Recovery,
Inc., alleging violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692-1692p, the
Telephone Consumer Protection Act (TCPA), 47 U.S.C.
§§ 151-231, and state laws. The Court referred all
pretrial matters to a magistrate judge, and the parties filed
cross motions for partial summary judgment. The magistrate
judge submitted a Report recommending the Court grant in part
and deny in part Smith's motion, grant Defendants'
motion, and deny both parties' motions to strike. Smith
objected. For the reasons below, the Court will overrule the
objections and adopt the Report.
Report properly details the events giving rise to Smith's
action against the Defendants. See ECF 71, PgID
1936-40. The Court will adopt that portion of the Report.
Rule of Civil Procedure 72(b) governs review of a magistrate
judge's report. If the parties "serve and file
specific written objections to the proposed findings and
recommendations, " then the Court must review the report
de novo. Fed.R.Civ.P. 72(b)(2). A district court need not
review portions of a report, however, to which no party has
objected. Thomas v. Arn, 474 U.S. 140, 153 (1985).
"The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions."
Court must grant a motion for summary judgment "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). The moving party
must identify specific portions of the record "which it
believes demonstrate the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met their
burden, the non-moving party may not simply rest on the
pleadings, but must present "specific facts showing that
there is a genuine issue for trial." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)).
is material if proof of that fact would establish or refute
an essential element of the cause of action or defense.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984). A dispute over material facts is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
considering a motion for summary judgment, the Court must
view the facts and draw all reasonable inferences "in
the light most favorable to the nonmoving party." 60
Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th
initial matter, Defendants argue that Smith filed her
objections late and the Court should overrule them on that
basis. Defendants are correct that Smith filed her objections
one day late. See Fed. R. Civ. P. 72(b)(2)
(requiring a party to file objections within 14 days of being
served with a Report). After the late filing, however, Smith
moved for an extension of time. ECF 74. The Court will
address the objections on the merits due to the minimal
additional time involved and the absence of any prejudice to
objects to the Report's conclusion with four arguments:
(1) in Pozo v. Stellar Recovery Collection Agency,
Inc., No. 8:15-cv-929-T-AEP, 2016 WL 7851415 (M.D. Fla.
Sept. 2, 2016), the court did not consider the deposition
testimony of two witnesses in Smith's case, Kevin Stark
and Kendra Vallarelli (mistakenly referred to as Racheal
Vallarilli in Smith's brief); (2) the Pozo court
did not consider the supplemental authority filed by Smith
(ECF 70); (3) the Human Call Initiator (HCI) system is a
predictive dialer and therefore an automatic telephone
dialing system (ATDS); and (4) the HCI system is composed of
several pieces of equipment which, when combined, form an
ATDS. See ECF 72.
outset, Smith fails to identify which portions of the Report
she believes to be in error. Instead, she makes a general
objection to the Report's recommendation to grant partial
summary judgment to Defendants. See ECF 72, PgID
1965 n.1. Her argument fails to satisfy Rule 72(b)(2), which
requires that an objecting party "file specific written
objections to the proposed findings and
recommendations." "A general objection to the
entirety of the magistrate's report has the same effects
as would a failure to object." Howard v. Sec'y
of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991). Indeed, Smith's general objection asks the
Court to duplicate the magistrate's role. "This
duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the
purposes" of referring the matter to the magistrate
judge in the first place. Id.
the magistrate judge warned Smith that "[a]ny objection
must recite precisely the provision of the Report
and Recommendation to which it pertains" and that
"[f]ailure to file specific objections constitutes a
waiver of any further right of appeal." ECF 71, PgID
1954. Smith disregarded both the Rules and the
magistrate's order. Rather than overruling her objection
outright for lack of specificity, the Court will construe
each of ...