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Brown v. CitiMortgage, Inc.

United States District Court, D. Massachusetts

April 11, 2017

FITZROY L. BROWN, et al., Plaintiffs,
v.
CITIMORTGAGE, INC., Defendant.

          MEMORANDUM AND ORDER

          Leo T. Sorokin United States District Judge

         For the reasons that follow, the Court ALLOWS Defendant's Motion to Strike (Doc. 55) and ALLOWS in part and DENIES in part the Motion to Dismiss (Doc. 50).

         I. BACKGROUND

         On July 18, 2016, Pro Se Plaintiffs Fitzroy L. Brown and Dawne P. Brown filed a Complaint against Defendant CitiMortgage, Inc., alleging various consumer protection claims arising out of their mortgage relationship and a looming foreclosure of Plaintiffs' home. Doc. 1 at 1-2.

         This was not the first lawsuit filed by Plaintiffs against this defendant. Plaintiffs first filed a suit in January 2012, amended their claims at least several times and proceeded to a bench trial before Judge Giles in the Superior Court of the Commonwealth of Massachusetts in December 2015. Doc. 7 at 2-5. Plaintiffs lost this trial and judgment was entered against them. On July 11, 2016, Plaintiffs filed another state suit regarding the same matters and sought a preliminary injunction. Doc. 15-1 at 2. Judge Giles denied Plaintiffs' request for an injunction, finding that their claims were barred by claim preclusion and that her previous findings of “bad faith and unclean hands” and lack of success on merits precluded equitable relief. Id. at 3-4.

         After voluntarily dismissing this second state suit, Plaintiffs filed this federal action. Two days after filing the Complaint, Plaintiffs sought a preliminary injunction. Doc. 16. In a written ruling after a hearing, the Court denied this motion, finding that (a) the principles of claim preclusion barred most of Plaintiffs' claims; (b) Plaintiffs failed to show a likelihood of success on any claims arising out of facts that post-date the 2015 Superior Court trial; and (c) the equities did not favor plaintiffs.

         On August 9, 2016, Defendant filed a Motion to Dismiss. Doc. 25. When the time for Plaintiffs to file a response expired without a filing, the Court sua sponte ordered Plaintiffs to respond and granted Plaintiffs twenty-one days to do so. Doc. 28 at 2. Plaintiffs responded timely, with both a Motion for Leave to Amend and an Opposition to the Motion to Dismiss. The Court allowed the Motion to Amend, denied the pending Motion to Dismiss as moot, and granted Plaintiffs an additional fourteen days to file an Amended Complaint. The Court cautioned Plaintiffs that if their Amended Complaint failed to survive the Rule 12(b)(6) scrutiny, the Court would dismiss their action with prejudice. Doc. 42 at 2.

         On November 3, 2016, Plaintiffs filed a Verified Amended Complaint (“Amended Complaint”). Doc. 46. Defendants filed a renewed Motion to Dismiss on November 28, 2016. Doc. 50. To date, Plaintiffs have not filed any response to the Motion to Dismiss. On December 12, without seeking leave, they did file another “Verified First Amended Complaint” (“Second Amended Complaint”). Doc. 54. Defendant has moved to strike this Complaint. Doc. 55. Plaintiffs have opposed this Motion, claiming that they are entitled as a matter of right to file it or, alternatively, that the Court should grant leave to amend. Doc. 56 at 1-2.

         II. Motion to Strike the Second Amended Complaint

         The Court declines to consider the Second Amended Complaint (Doc. 54). At this stage of the litigation, Plaintiffs must either seek leave of court or consent from Defendant for the filing. See U.S. ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 192 (1st Cir. 2015) (holding that the plaintiff, after exercising the one-time right to amend a complaint within 21 days of serving it, could make further amendments only with the opposing party's consent or with leave of court); Fed.R.Civ.P. 15(a)(1). They have done neither. Moreover, Plaintiffs' Opposition to the Motion to Strike cannot serve as an explanation of the reason to permit the filing. Even if the Court were to consider their Opposition as a motion for leave, Plaintiffs have not successfully explained in that document how their Second Amended Complaint cures the defects previously identified by Defendant. Thus, the Motion to Strike (Doc. 55) is ALLOWED.

         III. Motion to Dismiss the Amended Complaint

         Insofar as the Amended Complaint (Doc. 46) asserts claims arising out of the events prior to the Superior Court trial in December, 2015, principles of claim preclusion bar all of these claims. Under Massachusetts law, “[c]laim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (Mass. 1998) (citing Blanchette v. Sch. Comm. of Westwood, 427 Mass. 176, 179 n. 3 (Mass. 1998)). Here, as explained in the Court's Order on the Motion for Preliminary Injunction, the same parties litigated these same matters to conclusion in the Courts of the Commonwealth. Accordingly, the Motion to Dismiss Counts I, II, III, IV, and VI, is ALLOWED. In light of this ruling, the Court need not reach Defendant's argument that these counts also fail to state a claim.

         Three claims remain: Counts V, VII and VIII. Defendant argues that these remaining claims are meritless and moves to dismiss the Amended Complaint for failure to state a claim. Doc. 51 at 1. After careful consideration of the parties' arguments, the motion is ALLOWED IN PART and DENIED IN PART.

         A. ...


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