UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARREN McLEHAN and NOREEN 

McLEHAN,

Plaintiffs, Case Number 09-11547

Honorable David M. Lawson

v. Magistrate Judge R. Steven Whalen 

TROTT & TROTT, P.C.,

Defendant.

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ORDER ADOPTING REPORT AND RECOMMENDATION ON MOTION FOR

SUMMARY JUDGMENT BY DEFENDANT TROTT AND TROTT, P.C., 

GRANTING MOTION FOR SUMMARY JUDGMENT, DENYING MOTIONS TO

STRIKE BY CHASE BANK, DENYING PLAINTIFF’S MOTION TO

COMPEL, DISMISSING WRIT OF ERROR, DENYING PLAINTIFFS’ MOTION

TO DISMISS MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,

AND DISMISSING COMPLAINT WITH PREJUDICE

The plaintiffs lost their home in Detroit, Michigan to foreclosure in May 2008. They filed

suit in the Wayne County, Michigan circuit court alleging improprieties during that process. The

defendants were Chase Bank, Chase Home Finance LLC, the Federal Home Loan Mortgage

Corporation, Trott & Trott, P.C., and the County of Wayne. After defendant Chase removed the

case to federal court, the undersigned referred the matter to Magistrate Judge R. Steven Whalen to

conduct all pretrial proceedings under the authority granted by Congress in 28 U.S.C. § 636(b). The

defendants filed motions to dismiss or for summary judgment at various times. Magistrate Judge

Whalen did not decide the motions; instead, he prepared reports recommending the dispositions,

which in each case was that the respective motions be granted and the corresponding defendant be

dismissed from the case. The plaintiffs did not file objections, and the Court, after review, adopted

the recommendations and granted the respective motions. Defendants Chase Bank, Chase Home
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Finance LLC, The Federal Home Loan Mortgage Corporation, and the County of Wayne have been

dismissed under that procedure. 

Presently before the Court is another report and recommendation prepared by Magistrate

Judge Whalen, this time on a motion for summary judgment filed by defendant Trott & Trott, P.C..

The plaintiffs’ case against that defendant is based on alleged violations of the Fair Debt Collection

Practices Act, 15 U.S.C. § 1562g, and a provision of state law dealing with appointment of deputy

sheriffs. Magistrate Judge Whalen determined that there are no facts genuinely in dispute and

defendant Trott & Trott, P.C. is entitled to judgment as a matter of law. Magistrate Judge Whalen

recommends that the case be dismissed against that defendant, which would conclude the lawsuit.

The plaintiffs have not filed objections as such to the report and recommendation. They

have, however, filed a motion to “dismiss” the report and recommendation. They have filed another

motion of a similar nature as well, entitled “Motion to Compel and Dismiss Defendant’s Motion(s)

and Injunction by Who/What Authority,” which remains pending. The also filed a paper entitled

“Writ of Error Quae Coram Nobis Residant.” No party has responded to the plaintiffs’ motions;

however, also in the record are two motions by the attorneys for dismissed defendant Chase Bank

to strike the plaintiffs’ motion and the writ. Chase’s motions are entirely unilluminating, cite no

pertinent authority, and appear to be nothing more than churning by attorneys for a defendant who

no longer is part of the litigation in this Court. The Court discourages that practice.

The central theme of the plaintiffs’ motions and the writ is that the magistrate judge does not

have the authority to act in this case. The plaintiffs are incorrect. In the Magistrate Judges Act,

Congress authorized Article III judges to “designate a magistrate judge to hear and determine any

pretrial matter pending before the court.” 28 U.S.C. § 636(b)(1)(A). That section also states that
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magistrate judges may not “determine” motions to dismiss or for summary judgment. However,

when those matters have been referred to a magistrate judge, the magistrate judge may submit to the

Article III judge “proposed findings of fact and recommendations for the disposition.” 28 U.S.C.

§ 636(b)(1)(B) (stating that “a judge may also designate a magistrate judge to conduct hearings,

including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition, by a judge of the court, of any motion excepted in

subparagraph (A)”). Congress has described the procedure that applies when a magistrate judge

submits a report and recommendation:

Within fourteen days after being served with a copy, any party may serve and file

written objections to such proposed findings and recommendations as provided by

rules of court. A judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made. A judge of the court may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge. The judge

may also receive further evidence or recommit the matter to the magistrate judge

with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(1)-(3) (stating that “[a] magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to hear a

pretrial matter dispositive of a claim or defense . . . . Within 14 days after being served with a copy

of the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. . . . The district judge must determine de novo any part of

the magistrate judge’s disposition that has been properly objected to”).

Under this statute and rule, objections to a report and recommendation must be specific. The

Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.”

Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be clear enough to

enable the district court to discern those issues that are dispositive and contentious.” Miller v.
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Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the

magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are

too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file

specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd v.

Million, 380 F.3d 909, 912 (6th Cir. 2004).

Moreover, a party’s failure to file objections to the report and recommendation waives any

further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.

1987). Likewise, the failure to object to the magistrate judge’s report releases the Court from its

duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149 (1985).

The plaintiffs’ filings concerning the magistrate judge’s report and recommendation are not

styled as “objections.” However, pro se filings, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519,

520 (1972). The Court, therefore, will treat the plaintiffs’ motion to dismiss the magistrate judge’s

report as objections. The “objections,” however, do not address the substance of the report or take

issue with its legal pronouncements. As noted earlier, the gravamen of the objections is a misguided

challenge to the magistrate judge’s authority. “The leniency granted to pro se [litigants] . . . is not

boundless,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), and this Court cannot rewrite the

objections to state something they do not. Consequently, the plaintiffs have waived objections to

the magistrate judge’s suggestion that defendant Trott & Trott, P.C. is entitled to a judgment of

dismissal as a matter of law. After reviewing the submissions, the Court must say that it agrees.
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The plaintiffs’ motion to compel is cast in similar terms. It consists of a parade of legal

maxims and definitions, and it appears to be a similar challenge to the authority of the magistrate

judge. The plaintiffs observe that to deny someone his day in court is a serious matter. True

enough. But even pro se filers must follow the rules and state a case that requires adjudication under

the applicable laws. The plaintiffs have failed in that effort. The motion to compel does not state

any valid ground for affording the plaintiffs relief.

Finally, the plaintiffs’ filing of a writ of error coram nobis is an anachronism and of no legal

effect. The writ “was conceived by the judiciary of sixteenth century England, born of the

necessities of that time. Since a review by Parliament and the Exchequer was restricted exclusively

to errors of law, it was essential to devise some means of correcting the occasional injustice resulting

from errors of fact being committed in the Court of Kings Bench.” People v. Kendrick, 75 N.Y.S.2d

216, 218 (N.Y. Gen. Sess. 1947) (quotation marks and citation omitted). The writ was an invention

by courts of chancery, but it has been displaced by various forms of appeal, review, and

reconsideration. Id. at 219. In modern practice, a litigant dissatisfied with a magistrate judge’s

ruling or recommendation may seek relief from the assigned district judge within the time limits

prescribed. See Fed. R. Civ. P. 72. If a litigant is persuaded that errors in fact or law, newly

discovered evidence, or fraud on the court have led to an improper result, then he may seek relief

from an order or judgment under Federal Rule of Civil Procedure 60(b). And dissatisfaction with

the result in a district court may be reviewed by the appropriate court of appeals. However, the

litigants must follow the rules to seek and obtain such relief. It appears that by filing their writ of

error coram nobis, the plaintiffs once again are challenging the magistrate judge’s authority to act.

For the reasons stated earlier, those arguments have no merit.
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Accordingly, it is ORDERED that the Magistrate Judge’s Report and Recommendation [dkt

#50] is ADOPTED.

It is further ORDERED that defendant Trott & Trott, P.C.’s motion for summary judgment

[dkt #43] is GRANTED.

It is further ORDERED that the plaintiffs’ motion to compel [dkt #49] and motion to dismiss

the magistrate judge’s report and recommendation [dkt #51] are DENIED.

It is further ORDERED that the Writ of Error Quae Coram Nobis Residant [dkt #47] is

DISMISSED.

It is further ORDERED that defendant Chase Bank’s motions to strike [dkt #46, 48] are

DISMISSED as moot.

It is further ORDERED that the plaintiffs’ complaint is DISMISSED WITH PREJUDICE.

s/David M. Lawson

DAVID M. LAWSON

United States District Judge

Dated: September 7, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on September 7, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO