UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LUPO CHIROPRACTIC LIFE CENTER P.C., 

 

 Plaintiff, 

 Civil Action No. 09-CV-12615 

vs. HON. MARK A. GOLDSMITH 

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY, 

 Defendant. 

_____________________________/ 

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND 

RECOMMENDATION (D.E. 41) AND ORDERING AN EVIDENTIARY HEARING 

I. Introduction 

This matter is before the Court on the “Objection and Appeal” (Docket Entry (“D.E.”) 

42) filed by Plaintiff Lupo Chiropractic Life Center P.C. to the Report and Recommendation 

(“R&R”) filed May 23, 2011 (D.E. 41). The R&R followed this Court’s referral to the 

Magistrate Judge of Defendant State Farm Mutual Automobile Insurance Company’s motion for 

sanctions, attorneys and costs (D.E. 36).1

 

                                                            

1 The Court had referred the motion for hearing and decision, but the Magistrate Judge correctly 

noted that he had no jurisdiction to decide the motion, given that the motion was filed after entry 

of an order of dismissal. D.E. 36 at 6, citing Massey v City of Ferndale, 7 F.3d 506 (6th Cir. 

1993). The parties agreed on the record before this Court on June 1, 2011 that the Magistrate 

Judge had properly decided to issue a report and recommendation, and that neither party had any 

objection to this Court reviewing the report and recommendation, even though the matter had 

been referred for a decision.

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Having reviewed the R&R, as well as the parties’ submissions, the Court adopts the 

recommendation to grant State Farm’s motion, in part, and orders an evidentiary hearing to 

determine the amount to which State Farm is entitled. 

II. Discussion 

A provider of chiropractic services, Plaintiff filed this action in Macomb County Circuit 

Court, seeking reimbursement, under Mich. Comp. Laws § 500.3101 et seq., for allowable 

expenses incurred with respect to several persons insured by State Farm; seeking damages for 

fraud, misrepresentation and tortious interference; and requesting declaratory relief. After 

removal to this Court, the parties stipulated to dismissal of all claims, except the claim for 

reimbursement and for declaratory relief. D.E. 8. Following some discovery and motion 

practice, the parties began to discuss dismissal of the case, but certain issues – whether the 

dismissal should be with or without prejudice and whether Plaintiff should pay State Farm any 

costs – continued to divide them. Eventually, the parties agreed to a dismissal of the case with 

prejudice, but without prejudice to State Farm’s right to file a motion for payment of costs and 

attorney fees. An order to that effect was entered on January 26, 2011. D.E. 35. 

State Farm filed a motion for sanctions, attorney fees and costs based on Plaintiff’s initial 

filing of the Complaint, its maintenance of the suit thereafter, and the failure to comply with 

certain discovery obligations. The Magistrate Judge reviewed the parties’ submissions and heard 

oral argument, following which he issued a 29-page R&R thoroughly reviewing the positions of 

the parties. The R&R urged this Court to grant the motion in part as follows: 

 Deny any sanctions under Fed. R. Civ. P. 11 because (i) the motion violates Rule 

11(c)(2), as it was made in conjunction with requests for relief under other provisions of 

law; (ii) the motion failed to comply with the safe-harbor provision of Rule 11(c)(2); (iii) 

Plaintiff could have brought a motion under Rule 11(c) earlier but failed to do so. 

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 Grant sanctions, in part, under Fed. R. Civ.P. 37(b)(2)(C) and/or Fed. R. Civ. P. 37 (d)(3) 

for Plaintiff’s failure to respond to the Court’s July 13, 2010 order (D.E. 26), which had 

required Plaintiff to answer certain interrogatories and document requests. 

 Grant sanctions, in part, under Mich. Comp. Laws § 500.3148(2) for any portion of the 

$22,500.20 in attorney fees incurred by State Farm that is attributable to any 

unreasonable delay between the date on which Plaintiff informed its counsel to dismiss 

the case and the date on which Plaintiff’s counsel communicated that information to State 

Farm’s counsel. Any request for payment of legal assistant fees or other expenses should 

be denied as unauthorized under the statute. 

 Plaintiff’s Objection does not specifically take issue with any of these recommendations 

or any other matter in the R&R. As State Farm points out in its Response, the failure to file 

specific objections constitutes a waiver of any error. Thomas v Arn, 474 U.S. 140, 155 (1985). 

The reason for the waiver rule is explained in Howard v Sec’y of Health & Human Servs., 932 

F.2d 505, 509 (6th Cir. 1981): 

A general objection to the entirety of the magistrate’s report has the same effects 

as would a failure to object. The district court’s attention is not focused on any 

specific issues for review, thereby making the initial reference to the magistrate 

useless. The functions of the district court are effectively duplicated as both the 

magistrate and the district court perform identical tasks. This duplication of time 

and effort wastes judicial resources rather than saving them, and runs contrary to 

the purposes of the Magistrates Act. 

Because Plaintiff’s Objection – and State Farm’s Response as well – contain no specific 

objection to any particular matter in the R&R, any error that might be contained in the R&R is 

waived. 

Nonetheless, this Court has thoroughly reviewed the R&R and finds the factual and legal 

statements it contains to be fully supportable. Accordingly, the Court adopts the 

recommendations made by the Magistrate Judge and grants State Farm’s motion in part, as 

urged. 

As noted in the R&R at 24-26, the present record does not firmly establish the date when 

Plaintiff directed its counsel to dismiss the case and when that information was communicated to 

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State Farm’s counsel. Because a district judge is permitted to “receive further evidence” 

following the receipt of an R&R, Fed. R. Civ. P. 72(b)(3), the Court exercises its discretion to 

order an evidentiary hearing to determine those dates. At the hearing, the parties shall present 

whatever evidence they have establishing those dates and the amount and reasonableness of the 

attorney fees to be granted by the Court. 

III. Conclusion 

For the above reasons, the Court adopts the R&R and grants, in part, State Farm’s motion 

for sanctions, attorney fees and costs (D.E. 36). The Court orders an evidentiary hearing to be 

conducted on August 3, 2011 at 1:30p.m. at the U.S. Courthouse in Flint, Michigan. 

SO ORDERED. 

 s/Mark A. Goldsmith 

 MARK A. GOLDSMITH 

 United States District Judge 

Dated: June 22, 2011 

 Flint, Michigan 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on June 22, 2011. 

 s/Deborah J. Goltz 

 DEBORAH J. GOLTZ 

 Case Manager 

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