United States District Court, N.D. Georgia, Atlanta Division
MIRCEA F. TONEA, Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John K.
Larkins, III's Final Report and Recommendation 
(“Final R&R”), which recommends granting
Defendant Nationstar Mortgage, LLC's
(“Defendant”) Motion to Dismiss  and
dismissing the action with prejudice.
October 18, 2017, Plaintiff Mircea F. Tonea
(“Plaintiff”), proceeding pro se, filed
his “Verified Complaint for Lack of Standing to
Foreclose, Fraud in the Concealment, Fraud in the Inducement,
Unconscionable Contract, Breach of Contract, Breach of
Fiduciary Duty, Slander of Title, Damages and Relief”
 (the “Complaint”). This is the fifth lawsuit
filed by Plaintiff in an attempt to avoid a foreclosure sale
of property located at 1845 Oak Wind Lane, Buford, Georgia,
and at least Plaintiff's third case against his mortgage
servicer, Defendant. Plaintiff's Complaint contains a
“rambling hodgepodge of legal and factual assertions[,
]” which “principally challenges the manner in
which his mortgage loan was securitized and assigned
following its origination in 2004.” (See
generally ; see also  at 3).
Plaintiff alleges a number of state law claims against
Defendant and seeks damages and declaratory relief. ( at
November 13, 2017, Defendant filed its Motion to Dismiss. In
it, Defendant argues Plaintiff's Complaint is an
impermissible shotgun pleading and fails to state a claim
upon which relief can be granted. ([3.1] at 4-7). Defendant,
in the alternative, argues Plaintiff's claims are barred
by the doctrines of res judicata and
collateral estoppel. (Id. at 7-10). Plaintiff did
not file a response to the Motion to Dismiss. On January 26,
2018, the Magistrate Judge issued the Final R&R,
recommending granting Defendant's Motion to Dismiss on
the grounds that Plaintiff's Complaint is barred by the
doctrine of res judicata. ( at 3). The parties
did not file objections.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Jeffrey S. by Ernest S v.
State Bd. of Educ. Of State of Ga., 896 F.2d 507, 512,
513 (11th Cir. 1990). Where, as here, there have been no
objections filed, the Court reviews for plain error.
United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam).
Magistrate Judge ultimately concluded Plaintiff's
Complaint is barred by the doctrine of res judicata.
“[R]es judicata can be applied only if all of four
factors are shown: (1) the prior decision must have been
rendered by a court of competent jurisdiction; (2) there must
have been a final judgment on the merits; (3) both cases must
involve the same parties or their privies; and (4) both cases
must involve the same causes of action.” E.E.O.C.
v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir.
2004) (quotation omitted). An earlier decision precludes not
only identical claims, but also all legal theories and claims
that could have been raised earlier and that “aris[e]
out of the same nucleus of operative fact.” Baloco
v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th Cir.
2014). The court may consider the defense of res
judicata on a motion to dismiss filed under Rule
12(b)(6) when the existence of the defense can be determined
from the face of the complaint. See Solis v. Global
Acceptance Credit Co., 601 Fed.Appx. 767, 771 (11th Cir.
2015). The court may also take judicial notice of its own
records in resolving a motion to dismiss. Id.
Magistrate Judge found the first factor of the res
judicata doctrine satisfied because the decision in
Tonea IV was rendered by this Court, “which is
unquestionably a court of competent jurisdiction.” (
at 5). The Magistrate Judge next found the second factor
satisfied because “the Court's decision in
Tonea IV was a final judgment on the merits. “
(Id.). The Magistrate Judge further found the third
factor satisfied because “the parties in this action
are identical to those in Tonea IV.” Finally,
the Magistrate Judge found the fourth factor satisfied
because “the instant case plainly concerns the same set
of facts and legal complaints as Tonea IV.”
(Id. at 6). The Magistrate Judge concluded that
Defendant “demonstrated that the four res
judicata factors are met, ” and, therefore, its
Motion to Dismiss is “due to be granted.” ( at
7). The Court finds no plain error in the Magistrate
Judge's findings or recommendation.
foregoing reasons, IT IS HEREBY ORDERED that
Magistrate Judge John K. Larkins, III's Final Report and
Recommendation  is ADOPTED.
IS FURTHER ORDERED that Nationstar Mortgage,
LLC's Motion to Dismiss  is GRANTED