United States District Court, N.D. Ohio, Eastern Division
CHRISTINE J. FORGUES, Plaintiff,
CARPENTER LIPPS & LELAND LLP, et al, Defendant.
CHRISTOPHER A. BOYKO JUDGE
REPORT AND RECOMMENDATION
Jonathan D. Greenberg United States Magistrate Judge
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.
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
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.)
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).
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.
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.)
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.)
Law and Analysis
Federal Rule of Civil Procedure Rule 15(a)(2)
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
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).
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).
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.)
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
in light of Plaintiff Forgues' pro se status,
this Court will construe the motion under Federal Rules ...