United States District Court, W.D. Virginia, Harrisonburg Division
JAMES A. HEGEDUS, et al.. Plaintiffs
NATIONSTAR MORTGAGE, LLC, et al. Defendants.
Michael F. Urbanski Chief United States District Judge
se plaintiffs James and Virginia Hegedus
("Plaintiffs") allege defendants Nationstar
Mortgage, LLC ("Nationstar") and Daniel T. Conway
("Conway") violated various laws during the
servicing and foreclosure of a mortgage on a residence that
they owned in Delaware. This is the second action Plaintiffs
have brought against Nationstar for servicing activities
relating to this Delaware residence. Plaintiffs allege
conversion, breach of contract, tortious interference,
falsification of business records, and intentional infliction
of emotional distress against Nationstar; Plaintiffs claim
defamation and professional misconduct against Conway. The
complaint also includes claims of elder abuse, abuse of
process, malicious prosecution, and "manufacturing a
default leading to an illegal foreclosure action."
R&R, ECF No. 30, at 8-10; see generally Compl.,
ECF No. 1. Both defendants moved to dismiss the complaint for
failure to state a claim. See Nationstar's Mot. to
Dismiss for Failure to State a Claim, ECF No. 6; Conway's
Mot. to Dismiss for Failure to State a Claim, ECF No. 10.
This matter was referred to United States Magistrate Judge
Joel C. Hoppe for report and recommendation, pursuant to 28
U.S.C. Â§ 636(b)(1)(B).
report and recommendation issued on February 1, 2018, the
magistrate judge recommended granting Conway's motion to
dismiss and granting in part Nationstar's motion to
dismiss. R&R, ECF No. 30, at 25. Specific to
Nationstar's motion, the magistrate judge recommended
denying the motion as to Plaintiffs' conversion claim,
granting the motion to dismiss the breach of contract claim
without prejudice but with leave to amend, and granting the
motion to dismiss all other claims with prejudice. R&R,
ECF No. 30, at 25. The report gave notice to the parties that
they had fourteen days within which to file any objections.
On February 5, 2018, Plaintiffs filed a motion for extension
of time to respond to the report and recommendation.
Pls.' Mot. for Extension of Time, ECF No. 32. The
magistrate judge extended the time for objections until
February 22, 2018. Order Granting in Part and Denying in Part
Mot. for Extension of Time, ECF No. 29. Plaintiffs thereafter
timely filed objections to the report, ECF No. 36, and
Nationstar responded on February 22, 2018, ECF No. 40.
reasons stated below, the court will
OVERRULE Plaintiffs' objections,
ADOPT the report and recommendation in its
entirety, GRANT Conway's motion to
dismiss, GRANT in part and DENY in part
Nationstar's motion to dismiss, DISMISS without
prejudice Plaintiffs' breach of contract claim
and provide LEAVE TO AMEND, and
DISMISS with prejudice all other claims
except for Plaintiffs' conversion claim.
72(b) of the Federal Rules of Civil Procedure permits a party
to "serve and file specific, written objections" to
a magistrate judge's proposed findings and
recommendations within fourteen days of being served with a
copy of the report. See also 28 U.S.C. §
636(b)(1). The Fourth Circuit has held that an objecting
party must do so "with sufficient specificity so as
reasonably to alert the district court of the true ground for
the objection." United States v. Midgette, 478
F.3d 616, 622 (4th Cir. 2007), cert denied. 127
S.Ct. 3032 (2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
Id. The district court must determine de
novo any portion of the magistrate judge's
report and recommendation to which a proper objection has
been made. "The district court may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions." Fed.R.Civ.P. 72(b)(3); accord 28
U.S.C. § 636(b)(1). "General objections that merely
reiterate arguments presented to the magistrate judge lack
the specificity required under Rule 72, and have the same
effect as a failure to object, or as a waiver of such
objection." Moon v. BWX Techs., Inc., 742
F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v.
Astrue, 539 F.Supp.2d 841, 845 (W.D. Va. 2008)),
off'd. 498 Fed.Appx. 268 (4th Cir. 2012);
see also Thomas v. Am, 474 U.S. 140, 154 (1985(3))
("[T]he statute does not require the judge to review an
issue de novo if no objections are filed.").
objections that only repeat arguments raised before the
magistrate judge are considered general objections to the
entirety of the report and recommendation. See
Veney, 539 F.Supp.2d at 845. As the court noted in
Allowing a litigant to obtain de novo review of her
entire case by merely reformatting an earlier brief as an
objection "mak[es] 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." Howard [v. Sec'y of Health & Human
Servs.], 932 F.2d , 509 [(6th Cir. 1991)].
539 F.Supp.2d at 846. A plaintiff who reiterates his
previously raised arguments will not be given "the
second bite at the apple he seeks." Id.
Instead, his re-filed brief will be treated as a general
objection, which has the same effect as a failure to object.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter which, if accepted as true, "state[s] a
claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The court must "accept the well-pled
allegations of the complaint as true" and "construe
the facts and reasonable inferences derived therefrom in the
light most favorable to the plaintiff." Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997). The
same is not true for legal conclusions. "Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Iqbal, 556 U.S. at 678; see also Wag More Dogs.
LLC v. Cozart, 680 F.3d 359, 365 (4th Or. 2012).
plaintiff proceeding pro se is held to "less stringent
standards" than counseled plaintiffs, and the court must
construe his or her claims liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, the court need
not ignore a clear failure to allege facts that set forth a
cognizable claim. See Weller v. Dep't of Soc.
Services for City of Baltimore, 901 F.2d 387, 391 (4th
Cir. 1990). In light of Plaintiffs' status as pro se, the
court will "consider both the complaint and the factual
allegations in [Plaintiffs'] response to the motion to
dismiss in determining whether [their] claims can survive
dismissal." Shomo v. Apple. Inc., No. 7:14cv40,