               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 20a0262n.06

                                          No. 19-1902

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                May 11, 2020
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, ex rel.                 )
BRADLEY GELLER et al.,                            )
                                                  )       ON APPEAL FROM THE
        Relators-Appellants,                      )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE EASTERN
v.                                                )       DISTRICT OF MICHIGAN
                                                  )
STATE OF MICHIGAN et al.,                         )
                                                  )                OPINION
        Defendants–Appellees.                     )
                                                  )


Before: SILER, MOORE, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Bradley Geller filed a qui tam complaint against the State of Michigan

alleging various fraud and due-process violations in its administration of guardianship

proceedings. R. 1 (Compl.) (Page ID #1). Geller practices guardianship law in the Michigan

courts and brought this action on behalf of his clients and the United States—acting as both the

relator and the attorney of record. Id. at Page ID #13, 37. He amended the complaint to add a co-

plaintiff, Ronald Boucher, and to include claims against the courts, professional guardians/public

administrators, counties, and agencies that contribute to the guardianship system. See R. 35 (2d

Am. Compl.) (Page ID #290). The State of Michigan, St. Clair County, Washtenaw County, and

public administrator defendants moved to dismiss. See R. 66 (R&R at 3–4) (Page ID #865–66).

Some defendants moved for sanctions. See R. 61 (Mot. for Sanctions) (Page ID #761).
No. 19-1902, United States, ex rel Bradley Geller et al. v. State of Michigan et al.


       In his Report and Recommendation entered on April 26, 2019, the magistrate judge

recommended that all motions to dismiss be granted and that any remaining claims be dismissed

sua sponte under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

R. 66 (R&R at 4, 25) (Page ID #866, 887); see Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)

(“[A] district court may, at any time, sua sponte dismiss a complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations

of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no

longer open to discussion.”). The magistrate judge included a notice to the parties that a failure to

file objections within fourteen days of being served a copy of the R&R “constitutes a waiver of

any further right of appeal.” R. 66 (R&R at 27) (Page ID #889). The docket reflects that the

plaintiffs were served a copy of the R&R that same day, so any objections were due by May 10,

2019. Rather than file objections within the fourteen days, the plaintiffs submitted a notice of

voluntary dismissal without prejudice on May 14, 2019. R. 68 (Notice of Voluntary Dismissal)

(Page ID #893). The district court entered an order adopting the R&R on May 16, 2019 and

dismissing the amended complaint with prejudice. R. 69 (Order) (Page ID #922). The district

court also observed that “[t]he parties’ failure to file objections to the report and recommendation

waives any further right to appeal.” Id.

       “In this circuit, the failure to object to a magistrate judge’s Report and Recommendation

results in a waiver of appeal on that issue as long as the magistrate judge informs the parties of the

potential waiver.” United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019); see also

Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that the Sixth Circuit’s waiver rule is within its




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No. 19-1902, United States, ex rel Bradley Geller et al. v. State of Michigan et al.


supervisory powers). Here, the magistrate judge put the plaintiffs on notice of potential waiver.

Nevertheless, the plaintiffs failed to file a timely objection to the R&R. Waiver therefore applies.

       We may, however, “decline to apply the waiver rule where the district court’s error is so

egregious that failure to permit appellate review would work a miscarriage of justice.” United

States v. 1184 Drycreek Rd., 174 F.3d 720, 726 (6th Cir. 1999); see also Thomas, 474 U.S. at 155

(“[B]ecause the rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the

default in the interests of justice.”). We will also sometimes decline to apply waiver when “hearing

the issue ‘would serve an overarching purpose other than simply reaching the correct result in this

case’ [or] if the issue is presented with sufficient clarity such that no factual development would

be required and resolving the issue would promote the finality of litigation in the case.” Carter v.

Mitchell, 829 F.3d 455, 472 (6th Cir. 2016) (citation omitted), cert. denied, 137 S. Ct. 637 (2017).

None of these circumstances is present here. The magistrate judge and the district court have noted

the many insufficiencies of the plaintiffs’ pleadings. And it is not enough, as the plaintiffs contend,

that the alleged conduct is egregious, if proved to be true. There is no automatic “importance

exception” to the waiver rule—even in cases of constitutional significance. See Wandahsega, 924

F.3d at 879 (“The fact that his constitutional rights are at issue does not in and of itself make our

decision to decline to entertain his waived arguments a miscarriage of justice.”). Lastly, the notice

of voluntary dismissal does not help the plaintiffs. There was no guarantee that a request to dismiss

the action without prejudice, under the looming threat of sanctions and a prejudicial dismissal,

would succeed. We see no reason to decline to apply waiver in this case.

       We hold that the plaintiffs waived their right to an appeal by failing timely to file objections

to the R&R. We accordingly DISMISS this appeal.


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