United States District Court, D. Massachusetts
FITZROY L. BROWN, et al., Plaintiffs,
CITIMORTGAGE, INC., Defendant.
MEMORANDUM AND ORDER
Sorokin United States District Judge
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).
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.
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.
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.
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.
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.
Motion to Strike the Second Amended
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.
Motion to Dismiss the Amended Complaint
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.
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.