United States District Court, E.D. Michigan, Southern Division
AND ORDER SUSTAINING IN PART AND OVERULING IN PART
DEFENDANTS' OBJECTIONS (DKT. 35), OVERRULING
PLAINTIFF'S OBJECTIONS (DKT. 36), ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION (DKT. 32),
GRANTING DEFENDANTS' SECOND MOTION TO DISMISS (DKT. 26),
DENYING DEFENDANTS' MOTION TO STAY DISPOSITIVE MOTION
DEADLINE (DKT. 48), AND DENYING PLAINTIFF'S MISCELLANEOUS
MOTIONS (DKTS. 29, 31, 47, AND 49)
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
Arnold Kuerbitz's house was foreclosed upon after
Defendants Oakland County Treasurer, Andrew E. Meisner
(“Meis-ner”), and Oakland County Senior Assistant
Corporation Counsel, William J. Mann (“Mann”),
filed a tax delinquency complaint against him. Dkt. 13-3, Pg.
Id. 102. After a hearing was held on February 3,
2016, the Oakland County Circuit Court entered a judgment of
foreclosure for Plaintiff's property. Dkt. 13-3, Pg. ID
Meisner and Mann then scheduled an auction to sell the
property. See Dkt. 1, Pg. ID 8. In response, in a
letter Plaintiff sent to the judge overseeing the foreclosure
proceedings, Plaintiff stated that he was planning to appear
at the auction with people who had concealed-carry permits,
arrest Meisner, Mann, and anyone else that tried to stop him,
and videotape everything for the world to see. Dkt. 13-6, Pg.
ID 111. In his Complaint, Plaintiff stated that he also
intended to object to the legality of the auction. Dkt. 1,
Pg. ID 8. Learning of Plaintiff's plan, Defendants
William, Bouchard, and unknown Oakland Country Sheriff
Deputies denied Plaintiff access to the auction. Dkt. 1, Pg.
ID 8. Plaintiff then brought this lawsuit, alleging that the
denial violated his First and Fourteenth Amendment rights.
Dkt. 1, Pg. IDs 8-10. The Parties have filed multiple motions
upon which Magistrate Judge Stafford issued a Report and
Recommendation (Dkt. 32, R&R). Defendants and Plaintiff
have both timely objected to the R&R. For the reasons
outlined below, Defendants' objections are
SUSTAINED IN PART and OVERRULED IN
PART; Plaintiffs objections are
OVERRULED; the Report and Recommendation is
ADOPTED IN PART AND REJECTED IN PART;
Defendants' motion to dismiss (Dkt. 26) is
GRANTED; and Plaintiffs Motions (Dkts. 29,
31, 47, and 49) are DENIED. Because the
Court must dismiss the case, Defendants' Motion to Stay
Dispositive Motion Filing Deadline (Dkt. 48) is
DENIED AS MOOT.
relevant facts in this case were summarized in a previous
R&R that this Court adopted, and those facts are
incorporated herein by reference. Dkt. 25 (R&R dated
February 1, 2017); Dkt. 27 (Order adopting same). The
following are subsequent procedural developments:
• Defendants filed a second motion to dismiss (Dkt. 26);
• Plaintiff filed a motion for relief from judgment,
objection, and to strike Defendants' original motion to
dismiss (Dkt. 29);
• Plaintiff filed a motion to prohibit ex parte
communications and a demand for a due process hearing (Dkt.
• Magistrate Judge Stafford issued an R&R that
recommended denying the motions (Dkt. 32);
• Defendants objected to this R&R (Dkt. 35);
• Plaintiff objected to this R&R (Dkt. 36);
objections of both parties are now before this Court.
Standard of Review
party may object to and seek review of an R&R, but must
act within fourteen days of service of the R&R.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(2). Failure to file specific objections constitutes a
waiver of any further right of appeal. Thomas v.
Arn, 474 U.S. 140 (1985). Filing objections which raise
some issues but fail to raise others with specificity will
not preserve all objections a party has to an R&R.
Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th
Cir. 1991). The district court must make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. 28 U.S.C. § 636(b)(1)(c).
parties have filed objections to the R&R. Dkts. 35, 36.
The Court will summarize Magistrate Judge Stafford's
recommendations and then address the objections of each
Judge Stafford provided recommendations on the following
• Defendants' second motion to dismiss (Dkt. 26);
• Plaintiffs motion for relief from judgment (Dk . 29);
• Plaintiffs motion to prohibit ex parte communications
and demand for a due process hearing (Dkt. 31).
second motion to dismiss argued that Defendants lawfully
excluded Plaintiff from the foreclosure auction because, in
Plaintiffs Complaint, he alleges that he intended to arrest
Meisner and Mann at the sheriffs sale. Dkt. 26, Pg. ID 241.
Magistrate Judge Stafford recommended denying the motion.
Dkt. 32, Pg. ID 338. Specifically, the R&R stated that
Plaintiff did not allege in his Complaint that he intended to
arrest Meisner and Mann at the sheriffs sale, so that
intention could not be considered when deciding a Rule
12(b)(6) motion. Dkt. 32, Pg. ID 335. As to this
recommendation, for the reasons set out below, the Court
concludes that Defendants' objections concerning the
second motion to dismiss are well-taken, and that the R&R
should therefore be rejected in part and that the motion to
dismiss should be granted.
motion for relief from judgment, Dkt. 29, was essentially a
restatement of legal principles and arguments that Plaintiff
has raised in every motion he has filed in this lawsuit. Dkt.
32, Pg. ID 338. Magistrate Judge Stafford recommended denying
the motion. Dkt. 32, Pg. ID 339. The R&R explained that
Plaintiff had failed to demonstrate either a “palpable
defect” in the Court's previous decision or how
correction of that defect would result in a favorable
judgment for Plaintiff. Dkt. 32, Pg. IDs 338-39. As to this
recommendation, the Court concludes that it should be
motion to prohibit ex parte communications and demand for a
due process hearing, Dkt. 31, was also essentially a
repetition of previous arguments and legal principles that
Plaintiff has already brought before the Court. Dkt. 32, Pg.
ID 338. Magistrate Judge Stafford similarly recommended
denying the motion. Dkt. 32, Pg. ID 339. As to this
recommendation, the Court concludes that Plaintiff's
objections thereto are not well taken and it should be
object only to Magistrate Judge Stafford's recommendation
that the Court deny Defendants' second motion to dismiss.
They raise five objections:
1. The R&R Incorrectly States “Kuerbitz did not
allege in his complaint that he intended to conduct a