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Forgues v. Carpenter Lipps & Leland LLP

United States District Court, N.D. Ohio, Eastern Division

January 29, 2018




          Jonathan D. Greenberg United States Magistrate Judge

         This matter comes before the undersigned on referral for Report and Recommendation. Pending before the Court is Plaintiff Christine J. Forgues' Motion For Leave to Amend Her First Amended Complaint. (Doc. No. 19). For the reasons that follow, it is recommended Plaintiff's motion be DENIED.

         I. Procedural Background

         A recitation of Plaintiff's allegations and the procedural history of this matter are set forth in detail in the prior Report and Recommendation dated June 26, 2017, and will not be repeated herein. (Doc. No. 14.) As relevant herein, Plaintiff Forgues (hereinafter “Forgues”) filed a Complaint in this Court on October 21, 2016. (Doc. No. 1.) Shortly thereafter, this matter was referred to the undersigned for pretrial supervision. (Doc. No. 3.) Forgues thereafter filed her First Amended Complaint on January 5, 2017. (Doc. No. 5.) Therein, Forgues alleged five violations of the Fair Debt Collection Practices Act (“FDCPA”) by Defendants Carpenter Lipps & Leland LLP, David A. Wallace, and Deutsche Bank (hereinafter “Defendants”). (Id.)

         Plaintiff alleged the following:

On March 23, 2007, Plaintiff and her late husband borrowed $144, 000 from Chase Bank USA, N.A. to purchase a home in exchange for a promissory note and mortgage. On May 14, 2010, Chase Bank assigned the mortgage to Deutsche Bank National Trust Co. as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH5, Asset Backed Pass-Through Certificates, Series 2007-CH5. Plaintiff defaulted on the loan and Deutsche Bank instituted foreclosure proceedings in state court, resulting in a default judgment for Deutsche bank which Plaintiff did not appeal. On June 1, 2013, Select Portfolio Servicing, Inc. (“SPS”) became the servicer of the loan. Deutsche Bank did not proceed with a foreclosure sale of the property.
On June 30, 2015, Plaintiff filed a Motion to Set Aside the Default Judgment but that motion was denied. Plaintiff also filed a Complaint against SPS in federal court, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”) arising from the SPS's attempts to collect on the debt that was the subject of the foreclosure action. Defendants David Wallace and Carpenter Lipps & Leland LLP appeared as counsel for SPS in Plaintif's FDCPA and FCRA actions.
On September 23, 2015, Plaintiff emailed Carpenter and Wallace in attempt to settle her federal action and on October 5, 2015, SPS filed a Motion to Dismiss Plaintiff's FDCPA and FCRA complaint. Four days later, Plaintiff appealed the denial of her Motion to Set Aside the Default Judgment. On October 23, 2015, Wallace and Carpenter entered an appearance on behalf of Deutsche Bank in Plaintiff's appeal. Wallace sent Plaintiff a letter, informing her that Defendants were willing to discuss settlement. Plaintiff responded with a Consumer Notice of Dispute, contesting her entire debt and informing Defendants that she intended to sue them.

(Doc. No. 17, 2-3.)

         On February 21 2017, Defendants filed a Motion to Dismiss the First Amended Complaint. (Doc. No. 10.) Forgues filed a Brief in Opposition, to which Defendants replied. (Doc. No. 11, 13.) On June 26, 2017, the undersigned issued a Report and Recommendation that Defendants' motion be granted. (Doc. No. 14.) Therein, the undersigned relied in part on the Sixth Circuit opinion Goodson v. Bank of America, N.A., 600 Fed.Appx. 422 (6th Cir. 2015).

         Objections were filed by Plaintiff, and Defendants filed a response. (Doc. No. 15, 16.) In her objections, Plaintiff relied on Goodson in her own analysis, and did not argue the undersigned erred by relying on it in the Report and Recommendation. (Doc. No. 15 at 6, 19.) On September 28, 2017, the Court adopted and accepted the Report and Recommendation, granting Defendant's Motion to Dismiss. (Doc. No. 17.) The Court agreed with the undersigned's analysis under Goodson, concluding neither Wallace's letter nor the appellate filings were “communications in connection with a debt.” (Doc. No. 17 at 6, 8, 12.) This case was dismissed and judgment was entered in Defendant's favor on September 28, 2017. (Doc. No. 18.)

         On October 24, 2017, following the dismissal of the case, Plaintiff filed a Motion For Leave To Amend Her First Amended Complaint, Federal Rules of Civil Procedure 7(b) and 15(a)(2). (Doc. No. 19.) This motion was referred to the undersigned for Report and Recommendation on October 26, 2017. (Doc. No. 20.) On that same date, Plaintiff filed a Notice of Appeal to the Sixth Circuit. (Doc. No. 21.)

         The Court subsequently requested briefing on Plaintiff's Motion. (See Non-document Order dated 12/12/17) Defendants thereafter filed an Opposition to Plaintiff's Motion on December 27, 2017, to which Forgues replied. (Doc. Nos. 22 & 23.) On January 11, 2018, Defendants requested leave to file a sur-replay, which the Court granted. (Doc. No. 24 and Non-Document Order dated 1/16/18.) Defendants' sur-reply was filed on January 17, 2018. (Doc. No. 25.)

         II. Law and Analysis

         A. Federal Rule of Civil Procedure Rule 15(a)(2)

         In her Motion, Forgues seeks leave to amend her Complaint, for a second time, under Fed.R.Civ.P. 15(a)(2). (Doc. No. 19 at 1.) Rule (15)(a)(2) provides:

In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a)(2). While Rule 15 “embodies a liberal amendment policy, ” it is well-established that, once judgment has been entered, the moving party must first seek relief under Rules 59 or 60. See Pond v. Haas, 674 Fed.App'x 466, 472 (6th Cir. 2016). Indeed, the Sixth Circuit has recognized “following entry of final judgment, a party may not seek to amend their complaint without first moving to alter, set aside, or vacate the judgment pursuant to Rule 59 or Rule 60 of the Federal Rules of Civil Procedure.” Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). See also Benzon v. Morgan Stanley Distributors, Inc., 420 F.3d 598, 613 (6th Cir. 2005).

         However, once an appeal has been filed following a final judgment, the district court no longer has jurisdiction over the matter. Federal courts of appeal have jurisdiction of appeals from the “final decisions” rendered by district courts. See 20 U.S.C. § 1291. See also Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008). The concept of finality is well-settled. The Supreme Court has defined a “final decision, ” for purposes of appeal, as “generally one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed 911 (1945).

         Here, the Court entered judgment on this matter on September 28, 2017, when granting Defendants' Motion to Dismiss. (Doc Nos. 17 & 18.) The litigation concluded, and the case was terminated pursuant to Federal Rule of Civil Procedure 58. (Doc No. 18 at 1.) On October 24, 2017, Forgues filed a “Motion for Leave to Amend Her First Amended Complaint, ” specifically citing to Federal Rule of Civil Procedure 15(a)(2). (Doc. No. 19 at 1.) She thereafter filed a Notice of Appeal to the Sixth Circuit on October 26, 2017. (Doc. No. 21.)

         The Court finds Forgues' motion is procedurally improper under Rule 15(a)(2). This Court does not have jurisdiction over this matter because a final judgment has been entered and Forgues filed an appeal with the Sixth Circuit.[1]

         However, in light of Plaintiff Forgues' pro se status, this Court will construe the motion under Federal Rules ...

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