McComb v. Dominium Property Management

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROBERT MCCOMB, : Case No. 3:20-cv-369

:

Plaintiff, :

: District Judge Walter H. Rice

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

DOMINIUM PROPERTY :

MANAGEMENT, et al., :

:

Defendants. :

REPORT AND RECOMMENDATIONS1

This case is presently before the Court upon the Motion to Dismiss (Doc. #46) filed by

Defendants Dominium Property Management, Karen Stegall, Kirsten Dottillis, Alicia Lake, Karen

Kline, and Douglass Turner (collectively, the “Dominium Defendants”). In response to the

motion, Plaintiff filed a memorandum in opposition (Doc. #48), and the Dominium Defendants

replied (Doc. #51). Thus, the motion is ripe for review.2

I. Background

Plaintiff filed the instant case against the Dominium Defendants, Defendant Larry Lasky,

Penny Magos, and “Melody Jane Doe aka formerly Melody Morris” on September 2, 2020. (Doc.

#s 1, 4). Before all of the defendants had responded, on November 16, 2020, Plaintiff filed his

first motion for leave to file an amended complaint in order to add details related to his claims

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

2 Defendant Lasky has separately filed a Motion to Dismiss Pursuant To Civil Rule 12(B)(6) on the basis that Plaintiff

has failed to state a claim upon which relief may be granted against him. (Doc. #40), which is also ripe for review.

Additionally, Plaintiff has filed a Motion for Summary Judgment (Doc. #54) to which the Dominium Defendants have

filed a response (Doc. #63), and Plaintiff has filed a reply (Doc. #64). For the reasons explained below, the merits of

these motions need not be addressed because of the undersigned’s recommendation that Plaintiff’s Third Amended

Complaint (Doc. #39) be dismissed with prejudice.

against Defendants Lasky, Dottillis, and Lake. (Doc. #18). The very next day, Plaintiff filed a

second motion for leave to file an amended complaint as well as a request for leave to remove

Penny Magos and “Melody Jane Doe aka Melody Morris” as defendants. (Doc. #21). In order to

better understand the nature of Plaintiff’s requests, Magistrate Judge Kimberly A. Jolson ordered

Plaintiff to file a proposed second amended complaint. (Nov. 23, 2020 Notation Order).

Accordingly, Plaintiff filed a Proposed Second Amended Complaint on December 9, 2020

(“Second Complaint”). (Doc. #31). In response, Defendant Lasky filed a memorandum in

opposition, objecting to, among other things, Plaintiff’s designation of the parties. (Doc. #32).

Thereafter, the case was transferred to the undersigned. (Doc. #33). Upon review of the

relevant filings, the undersigned issued an Order on August 9, 2021, concluding that Defendant

Lasky’s objections to Plaintiff’s Second Complaint were well-taken and identifying additional

deficiencies in Plaintiff’s proposed pleading. (Doc. #35). In particular, the Court noted that

Plaintiff’s Second Complaint sought to assert claims on behalf of Plaintiff’s family members and

to certify the matter as a class action lawsuit. (Doc. #35, PageID #s 535-36). In light of the fact

that Plaintiff is a pro se litigant, the Court held that these claims were improper because Plaintiff

could not represent parties other than himself. Id. As a result, in granting Plaintiff’s request for

leave to file an amended complaint, the Court indicated that the Second Complaint filed by Plaintiff

was improper and granted leave to file a new amended complaint correcting these deficiencies. Id.

Additionally, the Court directed Plaintiff that “any proposed complaint must comply with

Federal Rule of Civil Procedure 8[,]” meaning that it “must contain, among other things, ‘a short

and plain statement showing that [he] is entitled to relief.’” Id. at 536 (quoting Fed. R. Civ. P.

8(a)(2)). Here, the Court specifically advised Plaintiff that the allegations contained in his

proposed complaint “must be simple, concise, and direct.” Id. (quoting Fed. R. Civ. P. 8(d)(1)).

Further, with regard to Plaintiff’s request to “subtract third party Defendant’s Penny Magos and

Melody Jane Doe aka formerly Melody Morris[,]” the Court granted Plaintiff’s request to remove

these defendants. Id. at 537. However, Plaintiff was also informed that “he cannot reserve the

right to add the parties back[]” and that if he later “seeks to add parties, he must comply with the

Federal Rules of Civil Procedure.” Id. With these defects outlined, Plaintiff was ordered to file a

new proposed amended complaint by August 26, 2021. Id. at 536.

When Plaintiff failed to file an amended complaint or request an extension of time for his

filing, the Court ordered Plaintiff to either file an amended complaint that complied with the

Court’s prior Order or to show cause no later than September 23, 2021 why the undersigned should

not recommend that this case be dismissed for failure to prosecute. (Doc. #38). In this Order, the

undersigned advised Plaintiff that failure to comply with the Court’s Order could result in

dismissal. Id. As a result, Plaintiff filed another amended complaint on September 14, 2021 (“Third

Complaint”). (Doc. #39).

Shortly thereafter, the Dominium Defendants filed the instant motion to dismiss asserting

that Plaintiff’s Third Complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure

and this Court’s orders and, therefore, should be dismissed.

II. Standard of Review

The Federal Rules of Civil Procedure provide that a pleading must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2).

In addition, Rule 8(e)(1) states that “[e]ach averment of a pleading shall be simple, concise, and

direct.” Fed. R. Civ. P. 8(e)(1). While the standard for what constitutes “a short and plain

statement” will inevitably vary depending on the circumstances and complications of a given case,

“Rule 8 proscribes [] obfuscation of the plaintiff’s claims.” Kensu v. Corizon, Inc., 5 F.4th 646,

651 (6th Cir. 2021) (internal citations omitted). As the Sixth Circuit has vividly stated, neither the

courts nor defendants should have to “‘fish a gold coin from a bucket of mud’ to identify the

allegations really at issue.” Id. (quoting U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d

374, 378 (7th Cir. 2003)). Accordingly, in determining whether a pleading violates Rule 8, “[t]he

key is whether the complaint is so verbose, confused and redundant that its true substance, if any,

is disguised.” Id. (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969),

quoting Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965)) (internal quotation marks omitted).

Further, once a complaint is found to have violated Rule 8, the court must assess the

appropriate remedy. Generally, the chosen remedy is an opportunity to amend the pleading to bring

it into compliance with Rule 8 as opposed to immediate dismissal. Id. at 652-653. However,

dismissal with prejudice is warranted in certain cases, such as when the court “has offered multiple

opportunities to fix the complaint and the plaintiff has persisted in noncompliance.” Id. at 653.

(citations omitted); see also Plymale v. Freeman, 1991 WL 54882 (6th Cir. 1991) (affirming

dismissal with prejudice for failure to comply with Rule 8). This sanction is also appropriate in

cases where an “amended complaint indicates a basic inability or unwillingness to comply with

the district court’s orders[,]” especially when the court had previously warned the plaintiff that

noncompliance could result in dismissal. Id. (citations omitted). In short, a court “need not have

infinite patience” and is entitled to dismiss a complaint with prejudice when a plaintiff exhibits a

“[p]ersistent or vexatious refusal to follow the rules.” Id.

III. Discussion

In their Motion, the Dominium Defendants contend that Plaintiff’s Third Complaint should

be dismissed due to Plaintiff’s failure to comply with the Court’s August 9, 2021 (Doc. #35) and

September 2, 2021 (Doc. #38) Orders as well as Rule 8 of the Federal Rules of Civil Procedure.

(Doc. #46, PageID #s 701-705). The Court will address each of these arguments in turn.

As noted above, the undersigned issued an Order on August 9, 2021, which granted

Plaintiff’s request to amend his pleading but specified certain defects that needed to be cured in

any such amendment. (Doc. #35, PageID #s 534-37). One of these defects addressed Plaintiff’s

impermissible attempt to represent his family and members of a class action. Id. at 535-36. In the

August 9, 2021 Order, the undersigned informed Plaintiff that as a pro se litigant, he could not

represent parties other than himself. Id. In drafting the Third Complaint, Plaintiff removed the

references to his sons by name as well as the section addressing class certification. (Compare Doc.

#31, PageID #s 439, 442-43 with Doc. #39). However, Plaintiff did not remove several references

to his “family” and “family members,” including statements which assert that he and his family

had been discriminated against and that his family’s rights have been violated (Doc. #39, PageID

#s 547, 565, 596-600, 604). In fact, in his prayer for relief, Plaintiff requests damages associated

with the discrimination suffered by both him and his family. Id. at 613. Plaintiff also appears to be

asserting claims on behalf of another tenant, “Beverly Butler,” (Doc. #39, PageID #s 561-64, 602),

which would also run afoul of the Court’s instruction to Plaintiff that he cannot represent other

parties.

Similarly, in granting Plaintiff’s request to remove defendants “Penny Magos and Melody

Jane Doe aka formerly Melody Morris,” the undersigned specifically advised Plaintiff that he

could not “reserve the right to add the parties back[]” and that if he later “seeks to add parties, he

must comply with the Federal Rules of Civil Procedure.” (Doc. #35, PageID #537). Despite this,

Plaintiff’s Third Complaint is replete with references to Penny Magos and Melody Morris. (Doc.

#39, PageID #s 545-47, 551-59). Indeed, Plaintiff specifically references either Ms. Magos or Ms.

Morris on approximately 12 different pages. Id.

In response, Plaintiff explains that his failure to cure the deficiencies outlined in the Court’s

Orders were the result of poor “cut and paste[]” jobs and were made “indirectly or without defiance

of the Court order[.]” (Doc. #48, PageID #713). Plaintiff also states that he “in good faith and as

order[ed] by this Court removed what Counsel is complaining about[]” but inadvertently failed to

remove references to Ms. Magos and Ms. Morris in the “caption pages.” Id. However, as noted

above, Plaintiff’s references to these former defendants are not simply limited to the “caption

pages” as he alleges but, rather, appear across 12 pages of the Third Complaint, including

numerous paragraphs containing specific factual allegations related to Ms. Magos or Ms. Morris.

(See Doc. #39, PageID #s 547, 553-59).

Moreover, Plaintiff’s assurances that he attempted to comply with the Court’s Order is

undermined by the very fact that he tried to resolve the deficiencies by “cut[ing] and past[ing]”

from the very pleading that the Court had identified as not conforming with Rule 8. Indeed, in its

August 9, 2021 Order, the Court specifically instructed Plaintiff to reformulate his pleading to

comply with Federal Rule of Civil Procedure 8, highlighting that his allegations needed to be

“simple, concise, and direct.” (Doc. #35, PageID #536). Here, Plaintiff argues that he did comply

with Rule 8 and that his Third Complaint should not be dismissed or stricken simply because

Defendants do not understand it. (Doc. #48, PageID #722). According to Plaintiff, the claims set

forth in his Third Complaint are clear, stating:

“As Plaintiff stated Defendant’ s et al and Larry Lasky committed Federal Housing

Violation in a direct discriminatory manner, in their individual capacity and jointly

what more clearer do Defendant et al counsel needs Plaintiff to state. Plaintiff Civil

Complaint is matter before this Honorable as an “Federal Question of Law” of the

asserted facts purported.”

Id. (errors in original).

Contrary to his contentions, Plaintiff’s Third Complaint is not as straightforward as he

believes. In fact, Plaintiff’s Third Complaint consists of 72 pages of single-spaced, difficult-to-

follow allegations, spanning 137 numbered paragraphs with 33 referenced “attached exhibits,”

which were, in fact, not attached. (See Doc. #39). Notably, this is not a great departure from his

80-page First Complaint or his 71-page Second Complaint. (Doc. #s 4, 31).

As for the substance of the Third Complaint, it is separated into several sections, including

a “Preliminary Statement Regarding Actions of the Voyageur Apartment and Dominium Property

Management Servicers LLC-Dominium Group,” statements on jurisdiction, venue, and the parties,

a section on “Material of Facts,” 8 causes of action, and a prayer for relief. Id. The bulk of the

Third Complaint falls under the section “Material of Facts,” which consists of a confusing and

intertwining mix of facts, law, arguments, and summarized communications between the parties.

(See Doc. #39, PageID #s 552-604). From what the Court can discern, Plaintiff’s allegations stem

from his apartment complex’s notice that his rental rate was increasing at the end of his lease and

that his Section 8 provider was not willing to pay the increase. See id. at 553-612. Plaintiff also

describes instances of discrimination under the Americans with Disabilities Act. See id. at 559-

61; 603-07.

However, the true extent of Plaintiff’s claims is muddied by the confusing and prolix

manner in which he presents his claims. For instance, instead of attaching a referenced

correspondence as an exhibit, Plaintiff has a vexing habit of retyping what appears (or at least

purports) to be communications he has had with Defendants directly into the text of his Third

Complaint. Plaintiff’s apparent aversion to the use of quotation marks or other forms of

differentiation makes it challenging to distinguish the correspondence from his separate arguments

and other factual allegations. For example, in Paragraph 115 of the Third Complaint, Plaintiff

provides:

September 18, 2020, Plaintiff McComb asserts that one year later and thereafter,

the initiating of this federal law suit to gain compliance third party Defendant Karen

Stegal via email Plaintiff McComb advising Plaintiff that Defendant Alicia Lake,

Manager indicated Plaintiff were requesting a reasonable accommodation for the

trash dumpster. Is this correct? If so I will send you necessary forms we require.

[See Attached Exhibit #32]3

(Doc. #39, PageID #603) (emphasis and errors in original).

At times, these “reproduced” communications often continue on for several pages and

contain references to both the facts and the law, making it difficult to discern whether Plaintiff is

providing the contents of the communication as part of the underlying factual basis for his claims

or if he is also attempting use these communications to set forth his actual legal claims. Take for

example what appears to be a reproduction of an August 17, 2020 letter from Plaintiff to Defendant

Lasky, which starts in Paragraph 92 of the Third Complaint and is separated out over the next 9

pages in Paragraphs 92 through 99. (Doc. #39, PageID #s 584-92). Within these Paragraphs (and

corresponding subparagraphs) are a combination of factual allegations against Defendant Lasky,

excerpts from case law, and numerous statutory and regulatory provisions. See id. Not

surprisingly, this mode of operation makes it very difficult for Defendants and the Court to

understand what Plaintiff is intending to use as context for his pending claims versus what is being

alleged as actual claims. This distinction is particularly significant in light of Defendants’

obligation to respond to Plaintiff’s Third Complaint by “(A) stat[ing] in short and plain terms its

defenses to each claim asserted against it; and (B) admit[ing] or deny[ing] the allegations asserted

against it by an opposing party.” Fed. R. Civ. P. 8(b)(1).

3 As with all exhibits referenced in Plaintiff’s Third Complaint, “Attached Exhibit #32” was not attached to the

filing.

Plaintiff’s habit of transcribing communications directly into the text of his Third

Complaint is not limited to his written communications with Defendants. Rather, Plaintiff also

devotes 10 pages of his Third Complaint to what appears to be his attempt at transcribing an audio

recording of a meeting he had with some of the Defendants. (Doc. #39, PageID #s 567-77). Like

the others, the relevance of this communication, if any, is not apparent.

Even when Plaintiff attempts to summarize (as opposed to transcribe) his encounters with

Defendants, his tendency to ramble and include unnecessary details make it very difficult to

ascertain which facts, if any, have legal significance. To illustrate, Plaintiff alleges the following

in Paragraph 77:

Plaintiff advised third party Defendant Lasky, rather you agreed with the contents

of the information that was served upon your Defendants Lasky client of their

obligation to abide and cease any and all discriminatory practices it is Defendant

Lasky lawful responsibility, as the “agent” to the principal and to the “agents” of

the principal to informed them to cease the discriminatory particles or Defendant

Lasky shall be added as a third party Defendant to the principal Defendant Lasky

responded looking Im pissing my leg.

(Doc. #39, PageID #580) (errors in original).

Following these 53 pages of “Material of Facts,” Plaintiff sets forth 8 causes of action.

(Doc. #39, PageID #s 605-12). Preceding most of these causes of action is a header, which sets

forth in either words or citations the claim or claims Plaintiff appears to be trying to assert. See id.

Each header is then followed by Plaintiff’s explanation of the claim(s), which are accompanied by

little to no supporting facts and are often pled alongside additional vague or conclusory claims that

were not included as claims in the overarching header. For example, in the header of Plaintiff’s

first cause of action, he cites to 42 U.S.C. § 1983 and 18 U.S.C. § 241 and § 242. (Doc. #39,

PageID #605). In the paragraph that follows, Plaintiff seems to not only add additional claims,

but also fails to set forth any factual allegations that provide a basis for a viable cause of action

under these laws. Specifically, Plaintiff’s first cause of action states:

118. Plaintiff hereby repeats, reallege, and incorporate by reference paragraphs

1-117 as though restated herein. As result of Defendant’ s et al., and their Agents

actions against Plaintiff Robert McComb did violate Plaintiff McComb

Constitutional Rights under 5th and 14th Amendment of the Organic Constitution,

Title VI of Civil Rights Act, Section 504 of the Rehabilitation Act, 18 USC Section

245(b)(2) Federal Protected Rights, 18 U.S.C. 241 Conspiracy Against Rights, and

42 U.S.C. 3631 Criminal Interference with Rights to Fair Housing and Fair Housing

Act when Defendant et al and their Agents knowingly conspired jointly to deny,

injure, oppress, threaten, interfere or intimidate and terminate Plaintiff residency

[…] for exercising his rights to fair housing and attempt to enjoyment of this right

and privilege afforded and protected by the Fair Housing Act.

(Doc. #39, PageID #s 605-06) (errors in original).

There are a number of confusing aspects to this “cause of action.” First, while Plaintiff

clearly identifies 42 U.S.C. § 1983 and 18 U.S.C. § 241 and § 242 as the statutes he intends to

assert in his first cause of action, he also references several other statutes without any factual

development to support these as potential claims. Additionally, as to the statutes that Plaintiff does

identify as the basis for this cause of action, two of them, 18 U.S.C. § 241 and § 242, are criminal

statutes that do not provide an independent private right of action. See Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (affirming dismissal of plaintiff’s claims

under § 242 because this “criminal statute[ ] ... do[es] not provide [a] private cause[ ] of action”).

Further, to extent that Plaintiff is attempting to assert a § 1983 claim in this count, he fails to set

forth sufficiently specific factual allegations to put Defendants on adequate notice of the conduct

he believes to serve as the basis for this claim. See Asbury v. Bisig, 70 F. App’x 247, 249 (6th Cir.

2003) (“A complaint must contain allegations regarding all the material elements to sustain a

recovery under some viable theory.”). Similarly, his repeated use of the generic reference to

“Defendants and their “Agents” without specifying which Defendants are at fault is inappropriate

in the context of a § 1983 claim where defendants “can be held liable only on their own

unconstitutional behavior.” Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012);

see also Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir.1991) (noting that personal liability “must

be based on the actions of that defendant in the situation that the defendant faced, and not based

on any problems caused by the errors of others, either defendants or non-defendants”).

Plaintiff’s remaining causes of action contain similar problems, including referencing

claims or statutes in the text of the section that not only differ from those identified in the respective

header but also are accompanied by vague or confusing factual allegations or simply no factual

development at all. (See Doc. #39, PageID #s 606-12). Plaintiff also cites several additional claims

or statutes that either do not exist or do not provide a private cause of action. See id.

In short, Plaintiff’s Third Complaint is so “verbose, confused and redundant that its true

substance, if any, is disguised.” Kensu, 5 F.4th at 651. Moreover, this is not the first pleading that

Plaintiff has filed containing unnecessary prolixity. As noted previously, Plaintiff’s prior two

complaints were just as long or shorter than his Third Complaint. Further, despite Plaintiff’s

assurances otherwise, the uncured deficiencies remaining in his Third Complaint suggest a basic

inability or unwillingness to comply with the Court’s orders, thus warranting dismissal.

In so finding, the undersigned acknowledges that “[p]ro se complaints are to be held ‘to

less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be liberally

construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Marting v. Overton,

391 F.3d 710, 712 (6th Cir. 2004)). Nonetheless, pro se litigants are not exempt from the

requirements of the Federal Rules of Civil Procedures. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.

1989); see also Song v. Gipson, 2011 WL 1827441, at *4 (6th Cir. May 12, 2011); Brown v.

Matauszak, 2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se

complaints for failure to comply with “unique pleading requirements” and stating “a court cannot

‘create a claim which [a plaintiff] has not spelled out in his pleading;’”) (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)); Payne v. Secretary of Treas., 73 F.

App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.

Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s

claim for her.”).

In this case, Plaintiff has been afforded more than one opportunity to amend his complaint,

has been directed to correct the defects identified in his prior pleading—including the “short and

plain statement” mandate of Rule 8—and has been specifically advised that failure to comply could

result in dismissal of his case. Despite this, Plaintiff has filed yet another prolix and confusing

pleading, preventing both the Court and the Defendants from being able to readily identify the

claims asserted. Accordingly, the undersigned RECOMMENDS that the Dominium Defendants’

Motion to Dismiss (Doc. #46) be GRANTED and that Plaintiff’s Third Complaint (Doc. #39) be

DISMISSED for failure to comply with the Federal Rules of Civil Procedure.

Additionally, the Court notes that Defendant Lasky has separately filed a Motion to

Dismiss Pursuant To Civil Rule 12(B)(6) on the basis that Plaintiff has failed to state a claim upon

which relief may be granted against him. (Doc. #40). Plaintiff, in turn, has filed a Motion in

Opposition to Defendant’s Motion to Dismiss and to Strike Attorney Roderer’s Motion to Dismiss

Brief (Doc. #44), which the undersigned construes as a response to Defendant Lasky’s motion.

However, because the foregoing analysis applies equally to Defendant Lasky as it does the

Dominium Defendants and serves to dismiss Plaintiff’s claims against him, the Court finds it

unnecessary to address the specific arguments raised in either of these motions. As a result, the

undersigned also RECOMMENDS that Defendant Lasky’s Motion to Dismiss Pursuant to Civil

Rule 12(B)(6) (Doc. #40) and Plaintiff’s Motion in Opposition to Defendant’s Motion to Dismiss

and to Strike Attorney Roderer’s Motion to Dismiss Brief (Doc. #44) be DENIED WITHOUT

PREJUDICE TO RENEWAL pending the disposition of this Report and Recommendations.

Similarly, Plaintiff’s Motion for Summary Judgment (Doc. #54) is also ripe for review.

However, for the reasons explained above and the fact that there is no operative complaint in this

case for Plaintiff to move for summary judgment on, the undersigned RECOMMENDS that

Plaintiff’s Motion for Summary Judgment (Doc. #54) be DENIED WITHOUT PREJUDICE

TO RENEWAL pending disposition of this Report and Recommendations.

IV. Conclusion

The undersigned has informed Plaintiff on two separate occasions that his failure to comply

with the Court’s orders and the Federal Rules of Civil Procedure could result in dismissal of his

case. (Doc. #s 35, 38). Plaintiff’s Third Complaint does not conform with Rule 8 of the Federal

Rules of Civil Procedure or the Court’s August 9, 2021 Order, thus warranting dismissal.

IT IS THEREFORE RECOMMENDED THAT:

1. The Dominium Defendants’ Motion to Dismiss (Doc. #46) be

GRANTED;

2. Plaintiff’s Third Complaint (Doc. #39) be DISMISSED

WITH PREJUDICE;

3. Defendant Lasky’s Motion to Dismiss Pursuant to Civil Rule

12(B)(6) (Doc. #40) be DENIED WITHOUT PREJUDICE

TO RENEWAL;

4. Plaintiff’s Motion in Opposition to Defendant’s Motion to

Dismiss and to Strike Attorney Roderer’s Motion to Dismiss

Brief (Doc. #44) be DENIED WITHOUT PREJUDICE TO

RENEWAL;

5. Plaintiff’s Motion for Summary Judgment (Doc. #54) be

DENIED WITHOUT PREJUDICE TO RENEWAL; and

6. The case be terminated on the Court’s docket.

August 30, 2022 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendations. Such objections shall specify the portions of the Report

objected to and shall be accompanied by a memorandum of law in support of the objections. If

the Report and Recommendation is based in whole or in part upon matters occurring of record at

an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless

the assigned District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th

Cir. 1981).