# Cunningham v. Enagic USA, Inc.

> District Court, M.D. Tennessee · October 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10436044

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** October 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436044

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CRAIG CUNNINGHAM,

Plaintiff, Case Number 15-00847
v. Honorable David M. Lawson
Magistrate Judge Barbara D. Holmes
THE 7 FIGURE WEALTH CORPORATION,
CHRISTIAN KINNEY, CORAZON
MANAGEMENT GROUP, INC., SUSIE
TREMBLAY-BROWN, MULTIPLEX
SYSTEMS, INC., MY MINDS EYE, LLC,
and JL NET BARGAINS, INC.,

Defendants.
/
ORDER ADOPTING REPORT AND RECOMMENDATION AND
SETTING ASIDE DEFAULT AS TO DEFEDNANT KINNEY
Presently before the Court is the report issued on September 10, 2019 by Magistrate Judge
Barbara D. Holmes pursuant to 28 U.S.C. § 636(b), recommending that the Court grant defendant
Oscar Christian Kinney’s motion to set aside default, vacate the corrected judgment entered on
January 16, 2018 as to Kinney, order plaintiff Craig Cunningham and his assignee James Shelton
to return the $22,500 seized from Kinney’s account and relinquish any control they maintain over
Kinney’s accounts, dismiss Kinney without prejudice as a defendant under Fed R. Civ. P. 21 for
lack of effective service of process, and deny the plaintiff’s request to strike Kinney’s motion to
set aside default.
The plaintiff’s assignee, James Shelton, filed an objection explaining that he re-assigned
his interest back to the plaintiff, does not possess any funds from Kinney’s account, and retains no
control over Kinney’s accounts. Shelton does not otherwise object to any other portion of the
report and recommendation. Moreover, the plaintiff did not file an objection to the report. The
parties’ 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 matter. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court
agrees with the findings and conclusions of the magistrate judge and will grant Shelton’s relief.

Accordingly, it is ORDERED that the report and recommendation (ECF No. 302) is
ADOPTED.
It is further ORDERED that defendant Kinney’s motion to set aside default judgment
(ECF No. 294) is GRANTED.
It is further ORDERED that the corrected judgment entered on January 16, 2018 (ECF
No. 274) is VACATED as to Kinney.
It is further ORDERED that Craig Cunningham shall return the $22,500 seized from
Kinney’s account and relinquish any control he maintains over Kinney’s accounts, if any.
It is further ORDERED that Kinney is DISMISSED without prejudice as a defendant

under Fed. R. Civ. P. 21 for lack of effective service under Fed. R. Civ. P. 4(m).
It is further ORDERED that Cunningham’s request that Kinney’s motion to set aside
default be stricken (ECF No. 299) is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge

Date: October 25, 2019
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 October 25, 2019.

s/Susan K. Pinkowski
SUSAN K. PINKOWSKI

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436044. Public record. Not legal advice.