United States District Court, D. Minnesota
Ann Burnip, pro se plaintiff.
Patrick C. Summers, DEWITT MACKALL CROUNSE & MOORE S.C.
for defendant Metro Motor Sales, Inc.
J. Ebnet and Vernle C. Durocher, Jr., DORSEY & WHITNEY
LLP, for defendant Credit Acceptance Corporation.
MEMORANDUM OPINION & ORDER ADOPTING REPORT AND
R. TUNHEIM UNITED STATES DISTRICT JUDGE
Latira Ann Burnip brought this action against Defendants
Credit Acceptance Corporation (“CAC”) and Metro
Motor Sales, Inc. (“MMS”) in Hennepin County
District Court on May 23, 2018. (Notice of Removal ¶ 1
& Ex. A, July 2, 2018, Docket No. 1.) CAC removed the
case to this Court on July 2, 2018. (Id. at 1.)
Burnip alleges various claims related to the purchase and
repossession of a 2005 Porsche Cayenne she purchased from MMS
in February 2018. (Am. Compl. at 2, July 25, 2018, Docket No.
13; Aff. of Sharron Lewis (“Lewis Aff.”) ¶
4, Ex. A (“Contract”), July 9, 2018, Docket No.
6-1.) Burnip alleges that Defendants: (1) unlawfully
attempted to repossess her vehicle; (2) unlawfully obtained a
lien on the title of her vehicle, which they have refused to
release; (3) violated private securities laws; and (4)
engaged in a “common scheme and plan which involved
misrepresentation through threats, duress, and coercion to
mislead” her. (Am. Compl. at 2-4.) Burnip asserts that
she owes nothing on the vehicle and that “[a]ny
signatures exhibited [on the Contract] are not mine and any
forgeries are not consensual.” (Id. at 12-14.)
moved to compel arbitration, and MMS later moved to join in
that motion. (Mot. to Compel Arbitration, July 9, 2018,
Docket No. 4; Mot. for Joinder, Aug. 6, 2018, Docket No. 19.)
In support of the Motion, CAC submitted a Retail Installment
Contract (the “Contract”) showing that Burnip
contracted with MMS to purchase the vehicle. (See
generally Contract.) In exchange for credit, the
Contract required Burnip to make 45 monthly payments
beginning on March 9, 2018. (Id. at 2.) Burnip and a
representative of MMS electronically signed the Contract.
(Id. at 2-6.) The Contract contains an arbitration
clause, which states that either party “may require any
Dispute to be arbitrated and may do so before or after a
lawsuit has been started over the
Dispute.” (Id. at 6.) Burnip electronically
initialed her agreement with the arbitration clause.
(Id.) She also initialed a section on the first page
of the contract stating that she had read, understood, and
agreed to the terms and conditions of the arbitration clause.
(Id. at 2.)
filed a response to Defendants' notice of removal.
(Pl.'s Response, July 25, 2018, Docket No. 12.) Burnip
challenged the authenticity and the legal sufficiency of
electronic signatures on copies of the Contract.
(Id. at 3.) She also moved to remand the case to
Hennepin County District Court, claiming removal was
improper. (Id. at 2, 5-12.)
January 15, 2019, United States Magistrate Judge Katherine M.
Menendez issued a Report and Recommendation
(“R&R”) on the Motion to Compel Arbitration,
Motion for Joinder, and Burnip's Response. (R. & R.,
Jan. 15, 2019, Docket No. 32.) The Magistrate Judge found
that a valid arbitration agreement exists between the parties
because the Contract contains legally recognizable electronic
signatures attributable to Burnip and copies of the Contract
satisfy the Best Evidence Rule. (Id. at 8-10.) She
further found the arbitration clause contained a “clear
assignment clause giving CAC all of the powers that MMS
possessed to enforce the terms of the agreement and …
specifically includes CAC as a party with the power to demand
arbitration over any arbitrable dispute.” (Id.
at 8.) Because Burnip did not reject the arbitration clause
within 30 days, the Magistrate Judge also found that the
arbitration clause became “effective as of th[e] date
of the Contract” under the right-to-reject clause.
(Id.) Finally, the Magistrate Judge determined that
removal to federal district court of Minnesota was proper
because the basis for removal was not diversity of
citizenship, but federal question jurisdiction arising out of
Burnip's allegations of violations of federal securities
laws. (Id. at 12.)
these findings, the Magistrate Judge recommended that the
Court: (1) grant CAC's Motion to Compel Arbitration; (2)
grant Metro Motor Sales, Inc.'s Motion for Joinder; (3)
deny Ms. Burnip's request for remand to Hennepin County
District Court; and (4) order the parties to arbitrate the
issues in this action, staying the case pending arbitration
between the parties. (R. & R. at 12-13.) Burnip now
objects. (Obj., Feb. 4, 2019, Docket No. 33.) Because there
is a valid agreement to arbitrate, the claims fall within the
scope of that agreement, and the Court has jurisdiction over
this matter, the Court will overrule Burnip's objections
and adopt the R&R in full.
STANDARD OF REVIEW
the filing of an R&R by a magistrate judge, “a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). To be proper, the objections must
specifically identify the portions of the R&R to which
the party objects and explain the basis for the objections.
Turner v. Minnesota, No. 16-3962, 2017 WL 5513629,
at *1 (D. Minn. 2015). “Objections which 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 error.”
Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d
1012, 1017 (D. Minn. 2015).
objections are primarily factual in nature, repeating
allegations concerning the validity of the contract and
disputing the factual record. These objections raise no new
issues. The factual record, including testimony from the
evidentiary hearing, clearly supports the Magistrate
Judge's conclusions that the electronic signatures were
legally sufficient under Minnesota law ...