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Smith v. Stellar Recovery, Inc.

United States District Court, E.D. Michigan, Southern Division

March 13, 2017

LAKISHA SMITH, Plaintiff,
v.
STELLAR RECOVERY, INC., et al., Defendants.

         OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO EXTEND TIME [74], OVERRULING PLAINTIFF'S OBJECTIONS [72], ADOPTING REPORT AND RECOMMENDATION [71], GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [38], GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [44], DENYING PLAINTIFF'S MOTIONS TO STRIKE [49, 58], AND DENYING DEFENDANTS' MOTION TO STRIKE [67]

          STEPHEN J. MURPHY, III United States District Judge

         Plaintiff 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.

         BACKGROUND

         The 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.

         LEGAL STANDARD

         Federal 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." Fed.R.Civ.P. 72(b)(3).

         The 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)).

         A fact 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 Cir. 1987).

         DISCUSSION

         As an 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 Defendants.

         Smith 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.

         At the 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.

         Additionally, 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 ...


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