United States District Court, N.D. Ohio, Eastern Division
CHRISTINE J. FORGUES, Plaintiff,
CARPENTER LIPPS & LELAND LLP, ET AL., Defendants.
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge (ECF # 26) that Plaintiff's
Motion for Leave to Amend Her First Amended Complaint (ECF #
19) be denied. Upon consideration of the Motion, Briefs,
Report and Recommendation and Objections, the Court ACCEPTS
and ADOPTS the Magistrate Judge's Report and
Recommendation and DENIES Plaintiff's Motion to Amend.
January 5, 2017, Plaintiff Christine J. Forgues filed her
First Amended Complaint, pro se, alleging violations of the
Fair Debt Collection Practices Act (“FDCPA”)
against Defendants Carpenter Lipps & Leland LLP, David
Wallace and Deutsche Bank National Trust Company arising out
of Defendants' attempts to collect on obligations related
to the foreclosure of Plaintiff's residence. On February
21 2017, Defendants filed a Motion to Dismiss the First
Amended Complaint. Plaintiff filed a Brief in Opposition, to
which Defendants replied. On June 26, 2017, the Magistrate
Judge issued a Report and Recommendation that Defendants'
Motion be granted. Objections were filed by Plaintiff and
Defendants filed a response. On September 28, 2017, the Court
adopted and accepted the Report and Recommendation, granting
Defendant's Motion to Dismiss. This case was dismissed
and Judgment was entered in Defendants' favor.
October 24, 2017, Plaintiff filed a Motion for Leave to Amend
First Amended Complaint arguing that the Sixth Circuit case,
Goodson v. Bank of America, N.A., 600 F. App'x
422 (6th Cir. 2015), upon which this Court relied in granting
Defendants' Motion to Dismiss, was unpublished and not
Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636, the District
Court is required to review de novo any portion of the
Magistrate Judge's Report to which a specific objection
is made. A party who fails to file an objection waives the
right to appeal. U.S. v. Walters, 638 F.2d 947, 950
(6th Cir. 1981). The District Court need only review the
Magistrate Judge's factual or legal conclusions that are
specifically objected to by either party. Thomas v.
Arn 474 U.S. 140, 150 (1985).
Rule 72.3(b) recites in pertinent part:
The District Judge to whom the case was assigned shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
Magistrate Judge. The District Judge need conduct a new
hearing only in such District Judge's discretion or where
required by law, and may consider the record developed before
the Magistrate Judge, making a determination on the basis of
the record. The District Judge may also receive further
evidence, recall witnesses or recommit the matter to the
Magistrate Judge with instructions.
seeks leave to amend her Complaint for a second time under
Fed.R.Civ.P. 15(a)(2). The Magistrate Judge correctly points
out that 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).
Court agrees with the Magistrate Judge that Plaintiff's
Motion is procedurally improper under Rule 15(a)(2). However,
the Court agrees to construe the Motion under Federal Rules
of Civil Procedure 59(e) and 60(b). The Sixth Circuit has
determined motions under Rule 59(e) are generally only
appropriate in the following circumstances: 1) to correct a
clear error of law; 2) to incorporate newly-discovered
evidence; 3) to prevent manifest injustice; and 4) to address
an intervening change in controlling law. Betts v. Costco
Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009).
See also Henderson v. Walled Lake Consol. Schs., 469
F.3d 479, 496 (6th Cir. 2006).
Reply Brief, Plaintiff argues that the Sixth Circuit case
that the Court relied upon to dismiss her case was
unpublished and not binding precedent and therefore, was
prejudicial. Plaintiff also argues that she has new
allegations regarding monthly statements sent by Deutsche
previous Report and Recommendation, The Magistrate Judge
analyzed the factors set out in Goodson v. Bank of
Am., N.A. 600 F.App'x. 422, 431 (6th Cir. 2015) and
determined that Plaintiff failed to allege a plausible claim
that the letter sent by the Defendant's lawyer was for
the purpose of inducing payment. The factors are as follows:
“(1) the nature of the relationship of the parties; (2)
whether the communication expressly demanded payment or
stated a balance due; (3) whether it was sent in response to
an inquiry or request by the debtor; (4) whether the
statements were part of a strategy to make payment more
likely; (5) whether the communication was from a debt
collector; (6) whether it stated that it was an attempt to
collect a debt; and (7) whether it threatened consequences
should the debtor fail to pay.” Id.
Magistrate Judge found the letter did not demand payment nor
did it indicate it was an attempt to collect a debt, in fact,
it did not reference Plaintiff's debt at all. The Court
held that the Magistrate Judge properly considered the