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Kuerbitz v. Meisner

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

September 20, 2017

ARNOLD KUERBITZ, Plaintiff,
v.
ANDREW E. MEISNER, WILLIAM MANN, WANDRIE WILLIAM, MICHAEL J. BOUCHARD, AND UNKNOWN OAKLAND COUNTY SHERIFF DEPUTIES, Defendants.

         OPINION 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.

         I. Introduction

         Plaintiff 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 102.

         Defendants 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.

         II. Background

         The 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. 31);
• 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);

         The objections of both parties are now before this Court.

         III. Standard of Review

         Any 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).

         IV. Analysis

         Both 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 party.

         Magistrate Judge Stafford provided recommendations on the following motions:

• 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).

         Defendants' 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.

         Plaintiff's 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 adopted.

         Plaintiff's 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 adopted.

         a. Defendants' Objections

         Defendants 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 ...

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