United States District Court, D. Minnesota
Beverly-Waldorf Tokarz, Occupant of the Office of the Executor and Sole Beneficiary of/for The Beverly Waldorf Tokarz Estate and Trustee for Treborn Manor, Private Trust; Frank Tokarz; and Beverly W. Tokarz, Plaintiffs,
Mortgage Electronic Registration Systems, Inc.; Arvest Central Mortgage Company; Universal American Mortgage Company, LLC; Wilford, Geske, & Cook, P.A.; David Mortenson; Eric D. Cook; Stephen Plaisance; Karla Payne; and Bruce Gross, Defendants.
AMENDED ORDER ADOPTING REPORT AND
Wilhelmina M. Wright United States District Judge
Beverly-Waldorf Tokarz, Occupant of the Office of the
Executor and Sole Beneficiary of/for The Beverly Waldorf
Tokarz Estate and Trustee for Treborn Manor, Private Trust;
Frank Tokarz; and Beverly W. Tokarz commenced this lawsuit
against mortgage and debt collection companies, as well as
individual employees of those companies, after defaulting on
a loan obtained for the purchase of real property. Currently
before the Court is the August 24, 2017 Report and
Recommendation (R&R) of United States Magistrate Judge
Katherine M. Menendez. (Dkt. 88.) The R&R recommends
granting with prejudice the motion to dismiss of Defendant
Universal American Mortgage Company, LLC; granting with
prejudice the motion to dismiss of Defendant Bruce Gross; and
granting with prejudice the motion to dismiss of Defendants
Arvest Central Mortgage Company, Eric D. Cook, David
Mortenson, Mortgage Electronic Registration Systems, Inc.,
Karla Payne, Stephen Plaisance, and Wilford, Geske, &
Cook, P.A. The R&R also recommends dismissing without
prejudice any claims brought on behalf of any individual or
entity other than the individual plaintiffs in this case,
namely the Beverly Waldorf Tokarz Estate and the Treborn
Manor Private Trust. Finally, the R&R recommends denying
as moot Plaintiffs' motions for summary judgment and for
joinder of additional parties. Plaintiffs filed timely
objections to the R&R, and Defendants responded. For the
reasons addressed below, the Court overrules Plaintiffs'
objections and adopts the R&R in full.
district court reviews de novo any aspect of an R&R to
which a party timely objects. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3); LR 72.2(b)(3). However,
“[g]enerally the failure to file specific objections to
a magistrate's report constitutes a waiver of those
objections.” Cowherd v. Million, 380 F.3d 909,
912 (6th Cir. 2004); see also Bui v. U.S. Attorney's
Office, No. 15-2001, 2015 WL 6758142, at *1 (D. Minn.
Nov. 5, 2015) (“Objections to an R&R that are not
specific but merely repeat arguments presented to and
considered by a magistrate judge are not entitled to de
novo review, but rather are reviewed for clear
Plaintiffs do not raise specific objections to the R&R,
nor do they provide legal support for their claims beyond
repeating the allegations in their complaint and
reincorporating their objections to other motions.
“Pleadings and other documents filed by pro se
litigants should be treated with a degree of
indulgence.” Williams v. Carter, 10 F.3d 563,
567 (8th Cir. 1993). But even when liberally construed,
Plaintiffs' complaint and objections do not state a
cognizable legal theory.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege sufficient facts that, when accepted as true, state a
facially plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The factual allegations
need not be detailed, but they must be sufficient to
“raise a right to relief above the speculative
level” in order to “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). “Though
pro se complaints are to be construed liberally, they still
must allege sufficient facts to support the claims
advanced.” Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004) (citation omitted).
R&R recommends granting Defendants' motions to
dismiss for failure to state a claim because Plaintiffs'
complaint does not identify any legal theory under which
relief can be granted. Plaintiffs base their claims on the
premise that Tokarz is a “foreign state” under
the Foreign Sovereign Immunities Act, 28 U.S.C. §
1603(a)-(b), and the Trading With the Enemy Act, 50 U.S.C.
§ 4305(b)(2). “The courts repeatedly have rejected
such ‘redemptionist and sovereign citizen'
arguments as utterly frivolous.” Mallory v.
Obama, No. 1:15-cv-1090, 2015 WL 7722034, at *2 (W.D.
Mich. Nov. 30, 2015); see also United States v.
Gerads, 999 F.2d 1255, 1256-57 (8th Cir. 1993) (imposing
sanctions on plaintiffs for suing the government based on a
sovereign citizen theory).
conducted its review, the Court agrees with the
recommendations of the R&R. Plaintiffs fail to state any
facially plausible claims on which relief can be granted.
Consequently, Plaintiffs' objections to the R&R are
overruled, and the R&R is adopted.
on the foregoing analysis and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
claims brought on behalf of any individual or entity other
than the individual plaintiffs are DISMISSED WITHOUT
Plaintiffs' objections to the R&R, (Dkt. 90), are
August 24, 2017 R&R, (Dkt. 88), is
Defendant Universal American Mortgage Company, LLC's
motion to ...