Cunningham v. Mortgage Contracting Services LLC et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 7/30/15. (klc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSEPH A. CUNNINGHAM, JR.,
SERVICES LLP, et al.,
Joseph A. Cunninghan, Jr., Bronx, New York, Pro Se Plaintiff.
July 30, 2015
STARK, U.S. DistrictJudge:
Plaintiff Joseph A. Cunningham, Jr. ("Plaintiff') appears prose and has been granted leave to
proceed in jomta pauperis. (D.I. 3) The Court proceeds .to review and screen the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(b).
Plaintiff attempts to raise claims related to the foreclosure of real property located in
Newark, Delaware. As discussed in Cunningham v. JP Morgan Chase Bank, Civ. No. 13-756-SLR,
Plaintiff is the executor of the estate of his father, Joseph Cunningham, Sr. The property at issue
was owned by the decedent. The decedent received a loan from Weichert Financial and the loan
was sold or transferred to J.P. Morgan Chase Bank.
In the instant Complaint, Plaintiff alleges that he is the heir and rightful owner of the land
and property at 247 Aukland Drive in Newark, Delaware. He alleges that Defendants JP Morgan
Chase/Duane Morris LLP ("JP Morgan Chase") and Mortgage Contracting Services LLC
("Mortgage Contracting") have not proven their ownership of the promissory note and, therefore, a
foreclosure action is improper and illegal. (D.I. 3) To support his claim, Plaintiff attached to the
Complaint an exhibit of a lawsuit pending in the Superior Court of the State of Delaware in and for
New Castle County wherein Plaintiff filed a counterclaim against JP Morgan and Weichert Realtors
in Case No. N12L-11-093 CS. (D.I. 3 Ex. A) In the prayer for relief, Plaintiff refers to the instant
action as a counterclaim.
Plaintiff alleges that he has the right to rescind his father's signature and that JP Morgan
Chase is not the owner of the promissory note. Plaintiff seeks one million dollars in damages.
A federal court may properly dismiss an actiol} sua sponte under the screening provisions of
28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks, monetary relief from a ,defendant who is immune from such relief."
Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (informa pauperis
actions). The Court must accept all factual allegations: in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. Coun(Y ofAlleghe'!J', 515 F.3d 224, 229 (3d Cir.
2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds prose, his pleading is
liberally construed and his Complaint, "however inart~lly pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. §,1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless"
or "fantastic or delusional" factual scenario. Neitzfae, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772,
774 (3d Cir. 1989). A court that considers whether an action is malicious must determine whether
the action is an attempt to vex, injure, or harass the defendant. See Deutsch v. United States, 67 F.3d
1080, 1086 (3d Cir. 1995). Repetitive litigation is some evidence of a litigant's motivation to vex or
harass a defendant where it serves no legitimate purpose. See Fiorani v. Hewlett Packard Cop., 547 F.
App'x 103, 105 (3d Cir. Sept. 26, 2013).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6) standard
to dismissal for failure to state a claim under§ 1915(e)(2)(B)). However, before dismissing a
complaint or claitns for failtire to state a claim upon w~ch relief may be granted pursuant to the
screening provisions of 28 U.S.C. § 1915, the Court must grant Plaintiff leave to amend his
complaint unless amendment would be inequitable or futile. See Grqyson v. Mqyview State Hop., 293
F.3d 103, 114 (3d Cir. 2002).
A complaint may be dismissed only if,
the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations "could not raise a claim of entitle.ment to relief." Bel/At/. Corp. v. Twomb!J, 550
U.S. 544, 558 (2007). Though "detailed factual allegations" are not required, a complaint must do
more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davis v. Abington Mem'l Hop., 765 F.3.d 236, 241 (3d Cir. 2014) (quoting Twomb!J,
550 U.S. at 555). In addition, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. See Williams v. BASF Cata!Jsts UC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662; 678 (2009) and Twomb!J, 550 U.S. at 570).
To determine whether a complaint meets the pleading standard as set forth in Twomb!J and
Iqbal, the Court must: (1) outline the elements a plaintiff must plead to a state a claim for relief; (2)
peel away those allegations that are no more than conclusions and thus not entitled to the
assumption of truth; and (3) look for well-pled factual allegations, assume their veracity, and then
"determine whether they plausibly give rise to an entitlement to relief." Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012) (internal citations omitted) (citing Iqbal, 556 U.S. at 679; Ar;gueta v. United States
Immigration and Customs Eeforcement, 643 F.3d 60, 73 (3d Cir. 2011)). The last step is "a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense."
Iqbal, 556 U.S. at 679.
A court that considers whether an action is malicious must determine whether the action is
an attempt to vex, injure, or harass the defendant. See: Deutsch, 67 F.3d at 1086. Repetitive litigation
is some evidence of a litigant's motivation to vex or harass a defendant where it serves no legitimate
purpose. See Fioranz~ 547 F. App'x at 105. "Repetitio~s litigation of virtually identical causes of
action may be dismissed under§ 1915 as frivolous or malicious." McWi!liams v. Colorado, 121 F.3d
573, 574 (10th Cir. 1997) (quotation marks and alteration omitted); Pittman v. Moore, 980 F.2d 994,
99 5 (5th Cir. 1993) (complaint is malicious when it "duplicates allegations of another  federal
lawsuit by same plaintiff); see also Bailry v. Johnson, 846 ~.2d 1019 (5th Cir. 1988) (in Jonna pauperis
complaint that merely repeats pending or previously litigated claims may be considered abusive and
dismissed under the authority of§ 1915); McGill v. Juanita Kreft Postal Serv., 2003 WL 21355439, at *2
(N.D. Tx. June 6, 2003) (complaint is malicious when it '"duplicates allegations of another pending
federal lawsuit by the same plaintiff' or when it raises claims arising out of a common nucleus of
operative facts that could have been brought in the prior litigation") (quotations omitted).
The instant Complaint contains claims that arise out of a common nucleus operative facts
and are related to Cunningham v. JP Morgan Chase Bank, Civ. No. 13-756-SLR, wherein Plaintiff raised
claims related to the foreclosure of the real property described above. This Court dismissed Civ.
No. 13-756-SLR as frivolous and by reason of abstention on July 2, 2013. (See Civ. No. 13-756-SLR
at D.I. 14) Plaintiff appealed, and the United States Appellate Court of Appeals for the Third
Circuit affirmed, agreeing that Younger abstention was appropriate in Plaintiff's case. See Cunningham
v. JP M01gan Chase Bank, 537 F. App'x 44 (3d Cir. Oct. 21, 2013). The filing of this complaint falls
squarely in the category of malicious litigation. Based ~pon the foregoing, the Court concludes that
Plaintiff's complaint is malicious within the meaning o~ Section 1915(e)(2)(B).
In Civ. No. 13-756-SLR, Defendant indicated iliat, on November 26, 2012, it initiated a
foreclosure action for the real property in question in the Superior Court of the State of Delaware,
JP Morgan Chase Bank, National Association v. Cunningham, C.A. No. N12L-11-093 JR]. (See Civ. No.
13-756-SLR, at D.I. 9 at Wiggins aff.
his father's estate. (Id.
10; Ex. H) Plaintiff is participating in ilie action on behalf of
11; Ex. I) The Court takes judicial notice that, to date, the action remains
Inasmuch as the foreclosure action remains pending, the Court must abstain pursuant to ilie
Younger abstention doctrine. See Younger v. Harris, 401 tl.S. 37 (1971) (federal district court must
abstain from hearing federal case which interferes with certain state proceedings). Abstention is
appropriate when: (1) iliere are ongoing state proceedings iliat are judicial in nature; (2) ilie state
proceedings implicate important state interests; and (3): the state proceedings provide an adequate
opportunity to raise the federal claims. See Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir. 2010).
The doctrine applies to proceedings until all appellate remedies have been exhausted, unless ilie
matter falls within one of ilie Younger exceptions. See Huffman v. Pursue Ltd., 420 U.S. 592, 608
Once again, the Court finds that the Younger elements have been met and none of the
doctrine's exceptions apply. There are ongoing state proceedings for the foreclosure of real
property. See Cunningham v. JP Morgan Chase Bank, 537 F. App'x at 45. Delaware has an important
interest in resolving real estate issues, and a ruling in the Delaware courts implicates ilie important
interest of preserving the auiliority of the state's judicial system. Id. Further, Plaintiff has an
adequate opportunity to raise any potential claims in State court. Finally, Plaintiff "has not
demonstrated 'bad, faith, harassment or some other extraordinary circumstance, which might make
abstention inappropriate."' Id. (quotingAntho'D' v.
316 F.3d 412, 418 (3d Cir. 2003).
Therefore, pursuant to Younger and its progeny, the Court must abstain. See Pennzoil Co. v. Texaco,
Inc., 481U.S.1, 15 (1987) (stating that Youngerabstenti0n is favored even after plaintiffs failed to
raise their federal claims in ongoing state proceedings).,
For the above reasons, the Court will dismiss the Complaint as malicious pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and due to abstention. The qourt finds amendment would be futile.
An appropriate order will be entered.
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