Opinion
Case No. 1:14-cv-228
05-22-2014
DARRIAN RACHEL, Plaintiff, v. COMMUNICATING ARTS CREDIT UNION, Defendant.
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz
DECISION AND ENTRY: (1) ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE (Doc. 4) IN PART;
(2) OVERRULING PLAINTIFF'S OBJECTION (Doc. 6); (3) DISMISSING
PLAINTIFF'S COMPLAINT (Doc. 3) WITHOUT PREJUDICE; (4) CERTIFYING
THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS; AND
(5) TERMINATING THIS CASE
This case is before the Court on the Report and Recommendation of United States Magistrate Judge Karen L. Litkovitz. (Doc. 4). The Magistrate Judge recommends that Plaintiff's Complaint be dismissed with prejudice for lack of subject matter jurisdiction and, alternatively, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12 (b)(1) and (6). The Magistrate Judge further recommends that the Court certify that an appeal would not be taken in good faith. Plaintiff filed an Objection (Doc. 6) which fails to address the dispositive conclusion of the Magistrate Judge that this Court lacks subject matter jurisdiction. The issues are now ripe for decision.
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), upon reviewing Plaintiff's filings and the comprehensive findings of the Magistrate Judge de novo, the Court: (1) ADOPTS the Report and Recommendation of the Magistrate Judge insofar as it recommends dismissal for lack of subject matter jurisdiction (Doc. 4); (2) OVERRULES Plaintiff's Objection (Doc. 6); (3) DISMISSES Plaintiff's Complaint (Doc. 3) in its entirety WITHOUT PREJUDICE for lack of subject matter jurisdiction; (4) CERTIFIES that an appeal would not be taken in good faith, thus, DENYING Plaintiff leave to appeal in forma pauperis; and (5) TERMINATES this case.
The Magistrate Judge recommends that the Complaint be dismissed with prejudice, "[A] dismissal for failure to state a claim is considered an adjudication on the merits with full preclusive effect in later litigation, while a dismissal for lack of subject-matter jurisdiction does not operate as a merits adjudication and is presumably granted without prejudice," Allstate Ins. Co. v. Global Med. Billing, Inc., 520 F. App'x 409, 411 (6th Cir. 2013) (citing Pratt v. Ventas. Inc., 365 F.3d 514, 523 (6th Cir. 2004)). The Court, finding the lack of subject matter jurisdiction dispositive, makes no conclusion with regard to the Magistrate Judge's alternative finding that the Complaint fails to state a claim upon which relief may be granted. Accordingly, the Court dismisses Plaintiff's claims without prejudice.
Following the filing of the Report and Recommendation, Plaintiff filed a Motion in which she communicates a settlement offer to Defendant. (Doc. 7). Plaintiff's Motion requires no action by the Court. Accordingly, the Clerk is ORDERED to TERMINATE Plaintiff's Motion (Doc. 7) on the Court's docket.
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IT IS SO ORDERED.
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Timothy S. Black
United States District Judge