Scarola v. Deutsche Bank National Trust Company
Filing
49
OPINION AND ORDER granting 41 Motion for leave to amend; adopting in part and rejecting in part 43 Report and Recommendations. See Opinion and Order for details. Plaintiff may file a Second Amended Complaint containing all his allegations on or before November 18, 2011. Plaintiff shall execute service of process on the new parties within 60 days of this Order. Signed by Judge John E. Steele on 11/3/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK SCAROLA,
Plaintiff,
vs.
Case No.
2:10-cv-677-FtM-29SPC
DEUTSCHE BANK NATIONAL TRUST COMPANY
AS TRUSTEE FOR THE HOLDERS OF GSAA
HOME EQUITY TRUST 2004-10 ASSETBACKED CERTIFICATES SERIES 2004-10,
COUNTRYWIDE MORTGAGE CORPORATION,
BANK OF AMERICA, all associated
trust funds relating to the three
banks and their executive officers,
all employees or 1099's who had any
hand in assigning transferring or
otherwise disposing of original
mortgage and note,
Defendants.
___________________________________
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #43), filed
August 15, 2011, recommending that plaintiff’s Motion for Leave to
File a Second Amended Complaint and Demand for Jury Trial (Doc.
#41) be denied and the case dismissed. After several extensions of
time, plaintiff filed a Motion for Leave to File a Second Amended
Complaint and Demand for a Jury Trial Filed on July 27, 2011 (Doc.
#48), construed as objections to the Report and Recommendation.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983).
A district judge “shall make
a
portions
de
novo
determination
of
those
of
the
report
or
specified proposed findings or recommendations to which objection
is made.”
28 U.S.C. § 636(b)(1)(C).
This requires that the
district judge “give fresh consideration to those issues to which
specific objection has been made by a party.”
Jeffrey S. v. State
Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th Cong. § 2 (1976)).
In the absence of specific objections,
there is no requirement that a district judge review factual
findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th
Cir. 1993), and the court may accept, reject or modify, in whole or
in
part,
the
636(b)(1)(C).
findings
and
recommendations.
28
U.S.C.
§
The district judge reviews legal conclusions de
novo, even in the absence of an objection.
See Cooper-Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla
v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28
F.3d 116 (11th Cir. 1994) (Table).
On November 12, 2010, defendant Deutsche Bank National Trust
Company, the only named defendant at the time, removed plaintiff’s
Complaint
(Doc.
#2)
on
the
basis
of
diversity
jurisdiction.
Defendant filed a Motion to Dismiss (Doc. #12) and plaintiff filed
an
Amended
Corporation
Complaint
(Doc.
and
of
Bank
#19)
America
-2-
adding
as
Countrywide
co-defendants.
Mortgage
Finding
jurisdiction
insufficiently
pled
with
the
addition
of
the
defendants, the Court issued an Order to Show Cause (Doc. #20)
directing the parties to indicate why the case should not be
remanded for lack of subject-matter jurisdiction.
Defendant again
filed a Motion to Dismiss (Doc. #23) in response to the Amended
Complaint.
On May 3, 2011, the Court issued an Order (Doc. #32) taking no
further action on the Order to Show Cause based on plaintiff
indicating that he “agrees with defendant that federal jurisdiction
will continue to exist once the correct parties” are named, and
granting plaintiff an opportunity to seek leave to file a Second
Amended Complaint, with a proposed document attached listing the
citizenship of all defendants.
Initially, on July 12, 2011, the
Magistrate Judge granted clarification on how to amend but denied
the request for leave to amend because the Amended Complaint was
insufficient.
(Doc. #40.)
On July 27, 2011, plaintiff filed a “Motion for to Asecond
Ammended Complaint and Demand for a Trial By Jury” (Doc. #41),
which was construed to contain the proposed allegations for a
Second Amended Complaint. Defendant filed a Response in Opposition
(Doc. #42).
On August 15, 2011, the Magistrate Judge issued a
Report and Recommendation (Doc. #43) finding diversity jurisdiction
was alleged and was present, but finding no viable constitutional
claim could be alleged, finding that the claim of fraud was not
-3-
pled with sufficient particularity, and finding that plaintiff has
no claim under Chapter 609 of the Florida Statutes that would not
be futile.
Based on these findings, it was recommended that the
case be dismissed.
Plaintiff objects that his form may not be proper but that he
is able to state a claim against the additional banks, and that he
was not provided an opportunity to raise his claims of fraud in the
state court proceedings.
(Doc. #48, pp. 3-4.)
Plaintiff objects
that the federal government has failed to protect him and he was
denied due process and a right to a jury in state court, and
therefore his constitutional rights have been violated.
7-10.)
Plaintiff
responsibility
to
prosecuting body.
also
present
objects
the
(Id., ¶ 13.)
jurisdiction exists.
that
Chapter
(Id., ¶¶
it
is
the
609
violation
Court’s
to
a
Plaintiff agrees that diversity
(Id., p. 5.)
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the Court
adopts the findings regarding jurisdiction to the extent that
plaintiff may be able to demonstrate diversity jurisdiction, and
otherwise rejects the Report and Recommendation at this stage of
the proceedings.
Although it is certainly unlikely that plaintiff
could state a constitutional claim against a private bank1 or a
1
The United States is not named as a party in this case, and
no allegations are made against any governmental entity, whether
(continued...)
-4-
civil claim under Chapter 6092, plaintiff may be able to more
specifically plead a claim of civil fraud3 if permitted leave to
amend.
The Court will grant the request to file an amended complaint
and permit plaintiff to file a “Second Amended Complaint” naming
the additional banks.
Plaintiff will also be granted additional
time to execute service of process on these newly named defendants.
To the extent that the allegations in the Second Amended Complaint
are insufficient, defendants will have the ability to respond and
file an appropriate motion.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #43) is hereby adopted
in part and rejected in part as follows:
A.
The
Court
adopts
the
finding
that
diversity
of
jurisdiction and proper venue may exist based on the allegations in
1
(...continued)
state or federal.
2
The applicable penalties are those designated for a third
degree felony. See Fla. Stat. § 609.06.
3
Plaintiff references a “criminal conspiracy” and “massive
international crime wave”, Doc. #48, p. 3, however, plaintiff has
not demonstrated that he has prosecutorial authority to bring a
complaint for criminal conduct.
-5-
paragraphs 3 through 7 and assuming that plaintiff is also a
“citizen” who is domiciled in the State of Florida4;
B.
The Court rejects the finding that an amendment would
necessarily be futile at this stage of the proceedings as plaintiff
may be able to state a claim if provided an opportunity to do so;
and
C.
The Court rejects the recommendation that the case be
dismissed.
2.
Plaintiff’s “Motion for to Asecond Ammended Complaint and
Demand for a Trial By Jury” (Doc. #41) is GRANTED.
3.
Plaintiff
may
file
a
“Second
Amended
Complaint”,
containing all of his allegations, on or before November 18, 2011.
Plaintiff shall execute service of process on the new parties
within SIXTY (60) DAYS of this Order.
DONE AND ORDERED at Fort Myers, Florida, this
3rd
day of
November, 2011.
4
“In order to be a citizen of a State within the meaning of
the diversity statute, a natural person must both be a citizen of
the United States and be domiciled within the State.”
NewmanGreen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989). Pleading
residency is not the equivalent of pleading domicile. Corporate
Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294 (11th
Cir. 2009); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.
1994); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).
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Copies:
Hon. Sheri Polster Chappell
United States Magistrate Judge
Counsel of Record
Unrepresented parties
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