Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
357
OPINION AND ORDER adopting and incorporating 341 Report and Recommendations; overruling 346 Objections; denying 269 Motion for Leave to File Third Amended Complaint. Signed by Judge John E. Steele on 1/26/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, as
Beneficiaries to the Rosa B.
Schweiker Trust and all of
its
related
trusts
aka
Stacey Berlinger O’Connor,
BRIAN BRUCE BERLINGER aka
Stacey Berlinger O’Connor,
and HEATHER ANNE BERLINGER,
as Beneficiaries to the Rosa
B. Schweiker Trust and all
of its related trusts aka
Stacey Berlinger O’Connor,
Plaintiffs,
v.
Case No: 2:11-cv-459-FtM-29CM
WELLS
FARGO,
N.A.
AS
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee
to the Rosa B. Schweiker
Trust,
and
all
of
its
related trusts,
Defendant/Third
Party Plaintiff
BRUCE D. BERLINGER and SUE
CASSELBERRY,
Third Party Defendants.
____________________________
OPINION AND ORDER
This matter is before the Court upon consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #341), filed
December 12, 2014, recommending that Plaintiffs' Motion for Leave
to
Amend
Second
Amended
Complaint
(Doc.
#269)
be
denied.
Plaintiffs filed Objections (Doc. #346) on December 22, 2014.
Wells Fargo’s Response in Opposition (Doc. #347) was filed on
January 8, 2015.
For the reasons set forth below, the Report and
Recommendation is accepted and adopted.
I.
Plaintiffs seek leave to file a third amended complaint (Doc.
#269) to add new claims of fraud and punitive damages.
deadline to amend pleadings expired on March 28, 2014.
#141.)
The
(Doc.
In support of their motion, plaintiffs assert that Wells
Fargo intentionally fabricated certain letters which would have
put
plaintiffs
on
notice
of
certain
trust
distributions.
According to plaintiffs, the letters were dated September 1, 2008,
however, plaintiffs did not live at the addresses on the letters
until 2009.
Plaintiffs allege they only became aware of Wells
Fargo’s fraudulent behavior in a deposition conducted on October
20, 2014, wherein deponents Heather and Stacey Berlinger testified
regarding the addresses.
(Doc. #269-1, ¶¶ 17, 26, 35.)
The Magistrate Judge reviewed the proposed third amended
complaint, concluded that plaintiffs’ failed to show good cause
and the amendment is untimely and futile.
Thus, the Magistrate
Judge recommended the motion for leave to amend be denied.
#341.)
- 2 -
(Doc.
II.
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); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).
to
which
objection
is
made.”
28
U.S.C.
§
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
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. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th
Cong.,
§
2
(1976)).
The
district
judge
reviews
conclusions de novo, even in the absence of an objection.
legal
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
III.
Plaintiffs are seeking to amend their pleadings seven months
after the March 28, 2014, deadline set by the Court.
Since
plaintiffs’ motion to amend was filed after the scheduling order
deadline, plaintiffs must first demonstrate good cause under Fed.
R. Civ. P. 16(b) before the court will consider whether amendment
is proper under Fed. R. Civ. P. 15(a).
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Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).
“The good cause
standard precludes modification unless the schedule cannot ‘be met
despite the diligence of the party seeking the extension.’”
Id.
at 1418 (citation omitted).
Plaintiffs assert three objections to the Magistrate Judge’s
Report and Recommendation: 1) good cause exists to permit an
amendment to the pleadings because the fraud on the Court did not
occur until October 20, 2014; 2) the evidence was improperly
weighed in Wells Fargo’s favor; and 3) a claim for fraud on the
court does not require a showing of detrimental reliance.
In plaintiffs first objection they allege that the acts of
fraud
did
not
occur
when
the
letters
were
produced
to
the
plaintiffs on March 9, 2012, but rather, occurred during Wells
Fargo’s depositions of the plaintiffs on October 20, 2014.
The
Magistrate Judge found that plaintiffs have not demonstrated good
cause to amend because they have failed to show why discovery
regarding
the
allegedly
fraudulent
documents,
including
depositions, were not conducted earlier in the case.
the
(Doc. #347,
p. 3.)
The Court agrees that plaintiffs have not shown good cause
for the untimely filing of the motion to amend.
Plaintiffs’ assert
that the fraud claim is based strictly on the questions asked to
plaintiffs Heather and Stacey Berlinger during their October 20,
2014 depositions.
(Doc. #346, ¶¶ 10-12.)
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However, the questions
asked by Wells Fargo were based on letters produced to plaintiffs
in March 2012.
Presumably, plaintiffs knew where they had live
up until that time.
As the Magistrate Judge stated, Heather and
Stacey Berlinger are parties to this lawsuit and with due diligence
the discrepancy could have been identified earlier in this case.
Plaintiffs do not allege Wells Fargo engaged in any inappropriate
conduct that delayed discovery and have also failed to explain why
these
depositions
could
not
have
been
conducted
earlier.
Accordingly, plaintiffs’ first objection is overruled.
Even if the Court were to reach a Rule 15(a) analysis, the
Court would find that the motion to amend should be denied.
It
is well settled that under Rule 15(a), leave to amend shall be
freely given when justice so requires, but a motion to amend may
be denied on numerous grounds including undue delay, bad faith or
dilatory tactics, undue prejudice to defendant, and futility.
Foman v. Davis, 371 U.S. 178, 182 (1962); Maynard v. Bd. of Regents
of the Div. Of Univs. of the Fla. Dep't of Educ., 342 F.3d 1281,
1287 (11th Cir. 2003).
The Magistrate Judge recommended that the amendment is futile
and unduly prejudicial.
According to plaintiffs, Wells Fargo
attempted to assert the statute of limitations, or waiver, as
affirmative defenses to the claims against them by fabricating
letters and then by asking questions about the letters during
depositions.
(Doc. #269-1, ¶¶ 16, 25, 34; #346, ¶¶ 10-11.)
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The Court finds that taking the allegations in the light most
favorable to the plaintiffs, there is no evidence that Wells Fargo
has perpetrated a fraud on the Court.
Wells Fargo has not used
the subject letters in any pleading or filing, or in any submission
to the Court.
Nor has Wells Fargo used the depositions of Stacey
or Heather Berlinger to assert an affirmative defense.
“[O]nly
the most egregious misconduct, such as bribery of a judge or
members of a jury, or the fabrication of evidence by a party in
which an attorney is implicated, will constitute a fraud on the
court.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.
1978). 1
In other words, a movant must show an “unconscionable
plan or scheme” to improperly influence the court's decision.
Id.
Plaintiffs’ allegations are not sufficient to support a claim of
fraud on the Court.
The Court agrees with the Magistrate Judge that plaintiffs
proposed Third Amended Complaint greatly modifies the allegations
contained in the Second Amended Complaint.
Accordingly, the Court
finds that the amendment would be unduly prejudicial to Wells Fargo
at this late stage in litigation.
After conducting an independent examination of the file and
upon
due
consideration
of
the
Report
1Unless
and
Recommendation
and
later superceded by Eleventh Circuit precedent, a Fifth
Circuit decision issued prior to the close of business on September
30, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
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Objections
thereto,
Recommendation
of
the
the
Court
accepts
Magistrate
Judge
the
and
Report
will
and
overrule
plaintiffs’ objections.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #341) is hereby
ADOPTED and the findings INCORPORATED herein.
2.
Plaintiffs’ Objections (Doc. #346) are OVERRULED.
3.
Plaintiffs’
Motion
for
Leave
to
File
Third
Amended
Complaint (Doc. #269) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of January, 2015.
Copies:
U.S. Magistrate Judge
All Parties of Record
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26th
day
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