United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE
Bishop Ruben DeWayne brings this action against Defendants JP
Morgan Mortgage Acquisition Corp. (“JP Morgan
Acquisition”) and Mortgage Electronic Systems, Inc.
“Defendants”). Complaint [#1-1]. Plaintiff seeks
$500, 000 in monetary damages for purported unfair and
deceptive acts pursuant to Mass. Gen. Laws ch. 93A, a
temporary injunction preventing a foreclosure sale with
respect to the property located at 53 Charlotte Street,
Dorchester, Massachusetts (the “subject
property”), and that the court make findings of fact
and conclusions of law by issuing a declaratory judgment.
Compl. ¶ 28-30 [#1- 1]. Pending before this court is
Defendant MERS' Motion to Dismiss the Complaint
(“Mot. to Dismiss”) [#10] and Plaintiff's
Motion for Temporary Injunction [#47]. For the
reasons set forth below, MERS' Motion to Dismiss
[#10] is GRANTED, and Plaintiff's Motion for
Temporary Injunction [#47] is DENIED.
Facts as Alleged in Plaintiff's
alleged in the complaint, Leitta Brooks granted a mortgage
(the “Brooks Mortgage”) to First National Bank of
Arizona to purchase the subject property. Compl. ¶ 9
[#1-1]. Under that instrument, MERS was the mortgagee
“acting solely as a nominee for Lender and Lender's
successors and assigns.” See id. ¶ 9.
First National Bank of Arizona merged with First National
Bank of Nevada in June 2008, and both banks were placed into
receivership by the Federal Deposit Insurance Corporation in
July 2008. Id. ¶ 3. The Brooks Mortgage was
later transferred by MERS to JP Morgan Acquisition in
September 2014, which was subsequently filed in the Suffolk
County Registry of Deeds. See id. ¶ 3, 10. At
some unknown time thereafter, Leitta Brooks sold Plaintiff
the property for $2, 500 to satisfy a debt that she owed him
for doing work on the property. See id. ¶ 27.
JP Morgan Acquisition is the current holder of the mortgage
and note. JP Morgan Acquisition subsequently filed a notice
of pre-foreclosure with the Suffolk County Land Court, Civil
Action No. 2017-SM-006779.
Plaintiff and Brooks previously filed several lawsuits
against Defendants (or Defendant JP Morgan Acquisition's
parent company, JP Morgan Chase Bank, N.A. See Corp.
Disclosure Statement [#28]) regarding the Brooks Mortgage.
Brooks filed three lawsuits: the first two were dismissed by
the district court and affirmed by the First Circuit, see
Brooks v. JPMorgan Chase Bank, N.A., No. 13-2041 (1st
Cir. 2014); Brooks v. JPMorgan Chase Bank, N.A., No.
15-1055 (1st Cir. 2015); the third is currently pending
before another district judge within the District of
Massachusetts. Brooks v. JP Morgan Chase Bank N.A.,
No. 18-cv-12176 (D. Mass. Oct. 18, 2018). Plaintiff has also
filed two prior related actions in this court. In 2015,
Plaintiff sought declaratory judgment against MERS,
“J.P. Morgan Mortgage Acquisition Corp., a/k/a/ known
as JP Morgan Chase Bank NA, ” and others, regarding
each party's rights to the subject property. See
DeWayne v. First Nat'l Bank of Arizona,
15-cv-14245-IT (D. Mass. Dec. 1, 2016) (the “First
DeWayne Action”). The court allowed the Defendants'
motion to dismiss the First DeWayne Action, id., No.
64 (filed Nov. 10, 2016), and denied Plaintiff's motion
to reconsider, id., No. 67 (filed Dec. 1, 2016).
Plaintiff did not appeal. In December 2016, Plaintiff filed
his second action, this time naming MERS, JP Morgan
Acquisition, and JP Morgan Chase Bank, in Massachusetts state
court, which Defendants removed to this court in January
2017. DeWayne v. MERS, Inc. et al., No. 17-cv-10139
(D. Mass. July 12, 2017) (the “Second DeWayne
Action”), Nos. 1, 1-1. The court allowed the
Defendants' motion to dismiss the Second DeWayne Action
because the doctrine of res judicata barred Plaintiff's
claims. Id. Mem. & Order, No. 26 (filed July 12,
2017). Plaintiff similarly did not appeal the court's
dismissal of the Second DeWayne Action.
MERS' Motion to Dismiss
moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing
again that the doctrine of res judicata precludes Plaintiff
from asserting his claims and that the Complaint therefore
fails to state a claim upon which relief can be granted.
Standard of Review
survive a motion to dismiss, a complaint must include factual
allegations that, taken as true, demonstrate a plausible
claim for relief. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-58 (2007). A plausible claim is one containing
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To assess a complaint, the court takes
the complaint's factual allegations as true, but need not
credit its conclusory legal allegations. Jane Doe No. 1
v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016)
(citation omitted). The court must then “determine
whether the remaining facts allow it to ‘draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Id.
court can, in an appropriate case, consider the affirmative
defense of res judicata on a Rule 12(b)(6) motion to dismiss.
See In re Colonial Mortg. Bankers Corp., 324 F.3d
12, 16 (1st Cir. 2003). An appropriate case is one in which
(1) “the facts that establish the defense must be
definitively ascertainable from the allegations of the
complaint, the documents (if any) incorporated therein,
matters of public record, and other matters of which the
court may take judicial notice, ” and (2) “the
facts so gleaned must conclusively establish the affirmative
defense.” Id. In deciding a Rule 12(b)(6)
motion to dismiss, a court is ordinarily limited to
considering “only the complaint, documents attached to
it, and documents expressly incorporated into it.”
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71-72
(1st Cir. 2014). The court can also consider matters of
public record, Freeman v. Town of Hudson, 714 F.3d
29, 36 (1st Cir. 2013), including the record of the
purportedly preclusive action where a “motion to
dismiss is premised on a defense of res judicata.”
Andrew Robinson Int'l, Inc. v. Hartford Fire Ins.
Co., 547 F.3d 48, 51 (1st Cir. 2008).
Application of Res Judicata
Full Faith and Credit statute provides that “judicial
proceedings of any court . . . shall have the same full faith
and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in
the courts of such State, Territory, or Possession from which
they are taken.” 28 U.S.C. § 1738. Where
“both the potentially precluding suit and the
potentially precluded suit were litigated in federal courts,
federal law governs the res judicata effect of the prior
judgment.” Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass'n, 142 F.3d 26, 37 (1st Cir. 1998).
Under the doctrine of res judicata, “a final judgment
on the merits of an action precludes the parties or their
privies from relitigating claims that were raised or could
have been raised in that action.” Apparel Art
Int'l, Inc. v. Amertex Enters. Ltd., 48 F.3d 576,
583 (1st Cir. 1995) (citing Allen v. McCurry, 449
U.S. 90, 94 (1980)).
judicata defense precludes litigation of a party's claims
when the following elements have been established: (1) a
final judgment on the merits in an earlier proceeding, (2)
sufficient identity between the causes of action asserted in
the earlier and later suits, and (3) sufficient identity
between the parties in the two actions. Kale v. ...