United States District Court, N.D. Ohio, Eastern Division
LAWRENCE R. GLAZER, Plaintiff,
CHASE HOME FINANCE, LLC ET AL., Defendant.
CHRISTOPHER A. BOYKO United States District Judge.
matter is before the Court on Defendants' Renewed Motion
to Strike Class Allegations in the Second Amended Complaint
(ECF # 255). Defendants move to strike the class allegations
in Plaintiffs' Second Amended Complaint because named
Plaintiff Lawrence Glazer has not obtained class counsel.
Previous counsel, Nicolette Glazer, Lawrence Glazer's
wife, was disqualified in the Court's November 2, 2015
Order. Plaintiff was ordered to obtain new counsel within
thirty days of the Order or proceed pro se. Plaintiff did not
obtain new counsel and proceeds pro se. According to
Defendants, a pro se litigant cannot fairly and adequately
represent a putative class. Plaintiff has requested that the
Court appoint class counsel but Defendants argues it is for
Plaintiff to propose class counsel under Fed.R.Civ.P.
23(a)(4). Therefore, Defendants move to strike the class
allegations because a pro se litigant cannot represent a
further contend Glazer cannot fairly and adequately represent
the interests of the class because he was previously
represented by his wife and law firm, presenting an inherent
conflict of interest. Furthermore, they argue Glazer does not
share common interests with the putative class because he
seeks damages far in excess of any recovery the class may
obtain, including fees owed his law firm in the underlying
foreclosure action. Also, according to Defendants,
Glazer's deposition answers reveal he is antagonistic to
the class because he either failed to answer or denied
knowledge of the most basic facts supporting his claims and
repeatedly denied knowledge of his claims.
also move to strike because the class definitions in
Plaintiff's proposed Second Amended Complaint attached to
his Motion for Leave to Amend were altered after the Court
granted leave to amend based on his proposed Second Amended
alleges a motion to strike class allegations under Rule 12(f)
is an improper mechanism in which to challenge the
allegations in a class action complaint. Instead, Rule 23
controls the right of Plaintiff to seek class certification
of claims. Citing the United States Supreme Court decision in
Shady Grove Orthopedic Associates v. Allstate Insurance
Co., 130 S.Ct. 1431, (2010) Plaintiff contends only a
Rule 23 analysis may determine the scope and suitability of
Plaintiff argues that Rule 23 does not condition the
certification of class upon the adequacy or presence of class
counsel. In essence, according to Plaintiff, Defendants seek
to put the cart before the horse in an attempt to circumvent
the proper analysis under Rule 23. However, under Rule 23 so
long as the prerequisites of Rule 23 (a) and (b) are met, the
Court may certify a class regardless of the presence of class
counsel. Therefore, according to Plaintiff, the Court must
first determine whether a class action may be maintained
after consideration of Rule 23(a) and (b). Only after such a
determination may it consider the adequacy of class counsel.
Furthermore, if a class is certified, the Court should
appoint class counsel in order to protect the interests of
review, the Court finds Plaintiff has circumvented the
Court's order granting leave to amend its complaint to
wholly rewrite his proposed class definitions without
Defendants having an opportunity to challenge the amendments.
On June 13, 2013, nearly four years after his initial
Complaint was filed with the Court, Plaintiff sought leave to
amend his Complaint to add new defendants, claims and class
allegations. Attached to the Motion for Leave to Amend was a
proposed Second Amended Complaint. Defendants objected and
the Court granted in part and denied in part Plaintiff's
Motion for Leave to Amend. The Court allowed the class
allegations to proceed but denied the addition of certain new
defendants and claims. Plaintiff never sought leave to amend
instanter and did not file its Second Amended Complaint.
Instead, the parties proceeded to litigate as if a Second
Amended Complaint were filed. Defendants filed an Answer,
Plaintiff moved for class certification and partial summary
judgment and Defendants moved to strike.
March 30, 2016, the Court ordered Plaintiff to file a
“compliant” Second Amended Complaint that
comported with the Court's ruling on the Motion for Leave
to Amend. However, having had the benefit of Defendants'
challenges to his class claims, instead of filing the Second
Amended Complaint containing the proposed class definitions
contained therein, Plaintiff's filed a Second Amended
Complaint that contained new class definitions drafted around
Defendants' “fail-safe” challenges to the
class definition found in the proposed Second Amended
judge in this district has held,
Under Rule 15(a), a party may amend its pleadings
once as a matter of course prior to being served with a
responsive pleading, but thereafter only with leave of court
or by written consent of the adverse party. Fed.R.Civ.P.
15(a). Leave shall be given freely when justice so requires.
Id. Generally, an amendment that does not comply
with Rule 15(a) is without legal effect and any new matter it
contains will not be considered unless the amendment is
resubmitted for approval.. Having concluded that the changes
made by Plaintiffs' amended complaint exceeded the scope
of leave granted, the Court finds the TAC fails to comply
with Rule 15(a). Accordingly, the Court views the TAC as a
proposed amendment and must determine whether to grant leave
at this time. A motion for leave to amend may be denied on
any of five well-established grounds, including prejudice to
the opposition. “[P]rejudice to the nonmoving party is
the touchstone for the denial of an amendment.” Among
the relevant considerations, prejudice to the opposing party
carries the greatest weight. For these purposes, prejudice
has been defined to include “undue difficulty in
prosecuting [or defending] a lawsuit as a result of a change
in tactics or theories on the part of the other party.”
Faced now with Defendants' motion to strike, the Court
finds that the new causes of action must be stricken because
their inclusion in the TAC far exceeded the scope of leave
granted by the Court, and allowing them to stand would
severely prejudice Defendants. (Internal citations
In re Keithley Instruments, Inc., Derivative Litig.,
599 F.Supp.2d 908, 913 (N.D. Ohio 2009).
Defendants never had the opportunity to challenge the new
class definitions and allegations they are necessarily
prejudiced by it. In fact, the parties had fully briefed the
class issues based on the allegations in the proposed Second
Amended Complaint only to have Plaintiff revise the class
definition and add allegations not contained in the proposed
Second Amended Complaint.
the Court strikes the class allegations in the Second Amended
Complaint as having been filed without leave and the Renewed
Class Certification Motion is stricken as it is based on the
improperly filed Second Amended Complaint. However, this case
has languished too long and demands expedited determinations.
Therefore, Plaintiff is ordered to file his Motion for Leave
to Amend no later than seven days from the date of this
Order. Defendants shall file an opposition no later than
seven days after filing of the Motion for Leave. The Court
will expedite its ruling on Leave. If the Court grants leave
to Amend it will order the Renewed Motion for Class
Certification and Opposition and Reply be reinstated on the
docket and will expedite its ruling accordingly.
the Court grants Defendants' Renewed Motion to Strike
Class Allegations, in part, and strikes the Renewed Motion
for Class Certification (ECF # ...