BALL et al v. JPMORGAN CHASE BANK NA

Filing 43

ORDER denying 38 Motion to Amend Complaint; denying 39 Motion for Reconsideration. Ordered by U.S. District Judge W LOUIS SANDS on 1/27/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
JOHNNY FRANK BALL, JR., and
TEMPIE BALL

:
:
:
Plaintiffs,
:
:
v.
:
:
JPMORGAN CHASE BANK, N.A. and :
FEDERAL HOME LOAN MORTGAGE :
CORPORATION,
:
:
Defendants.
:
:

CASE NO.: 1:12-cv-132 (WLS)

ORDER
Before the Court are Plaintiffs’ Motion for Leave to File Second Amended Complaint and Motion for Reconsideration. (Docs. 38, 39.) For the reasons that follow, the
motions are DENIED.
PROCEDURAL BACKGROUND
Plaintiffs Johnny Frank Ball Jr. and Tempie Ball brought suit against JPMorgan
Chase Bank, N.A., and the Federal Home Loan Mortgage Corporation, for claims arising from the non-judicial foreclosure of their home. JPMorgan Chase Bank, as successor
by merger to Chase Home Financing, LLC, held a security deed on the Plaintiffs’ home
used to secure the promissory note evincing their home loan. Since the beginning of this
lawsuit, the Plaintiffs have asserted in a variety of ways that Chase Home Financing
lacked standing to foreclose their mortgage because it did not possess the promissory
note that carried the indebtedness.
On January 24, 2013, the Court stayed this case pending the Supreme Court of
Georgia’s answer to a certified question in a similar case from the Northern District of
Georgia. About four months later, in You v. JP Morgan Chase Bank, N.A., 293 Ga. 67
(2013), the Supreme Court of Georgia held that “under current Georgia law, the holder
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of a deed to secure debt is authorized to exercise the power of sale in accordance with
the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the debt,” id. at 74. Reasoning that the
You decision foreclosed Plaintiffs’ claims for relief, the Court granted Defendants’ Motion for Judgment on the Pleadings. (Doc. 36.)
At no point prior to the Court’s ruling did Plaintiffs, who were represented by
counsel, move to amend or request leave to amend their Complaint.
On October 27, 2013, Plaintiffs filed the pending Motion for Leave to File Second
Amended Complaint and Motion for Reconsideration. The Motion for Reconsideration
contends that the Court made a “manifest error of law” by dismissing Plaintiffs’ complaint without, sua sponte, granting leave to amend. The Motion for Leave to File Second
Amended Complaint primarily addresses why, under Federal Rule of Civil Procedure
15(a), there are not substantial reasons to deny leave to amend. Defendants oppose both
motions.
DISCUSSION
I.

Motion for Reconsideration

Plaintiffs argue the Court committed a manifest error of law by dismissing their
complaint without first granting leave to amend. (Doc. 39 at 3 (quoting Muckle v. UNCF,
420 F. App’x 916, 918 (11th Cir. 2011).) The Eleventh Circuit disposed of this argument
more than a decade ago in Wagner v. Daewoo Heavy Industries America Corporation, 314
F.3d 541 (11th Cir. 2002) (en banc). The Wagner court held that “[a] district court is not
required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff,
who is represented by counsel, never filed a motion to amend nor requested leave to
amend before the district court.” Id. at 542.
In reaching this holding, the Wagner court overruled in part Bank v. Pitt, 928 F.2d
1108 (11th Cir. 1991) (per curiam), which had held that “[w]here it appears a more carefully drafted complaint might state a claim upon which relief can be granted, we have
held that a district court should give a plaintiff an opportunity to amend his complaint
prior to dismissing it,” id. at 1112. The Eleventh Circuit reasoned the Bank rule gave

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plaintiffs “two bites at the apple.” 314 F.3d at 543. A plaintiff could sit on his rights
while awaiting a district court’s ruling on a motion to dismiss. Id. Then he could appeal
and wait for the result. Id. If he prevailed on appeal, the case would be reversed; if he
lost, he could at least bank on a remand for an opportunity to amend the complaint. Id.
Thus, Wagner forecloses Plaintiffs’ argument that the Court erred in failing to
grant leave to amend the complaint prior to dismissal. Like the plaintiff in Wagner,
Plaintiffs, who are represented by counsel, never sought to amend their complaint.
They instead sought to distinguish You with a semantic argument. They then waited for
the Court’s ruling before moving to amend. Plaintiffs do not get “two bites at the apple.”
Plaintiffs’ citation to Muckle v. UNCF, 420 F. App’x 916 (11th Cir. 2011) is disingenuous. Wagner explicitly withheld ruling on pro se parties. Id. at 541 n.1 (“In this opinion, we decide and intimate nothing about a party proceeding pro se.”). The Eleventh
Circuit continues to apply Bank to pro se plaintiffs. E.g., Muckle v. UNCF, 420 F. App’x at
918. Plaintiffs in this case are not—and never were—pro se plaintiffs. (See docket.)
Because the Court did not commit a manifest error of law, Plaintiffs’ motion is
DENIED.
II.

Motion for Leave to File Second Amended Complaint.

Accompanying their Motion for Reconsideration, Plaintiffs also move for leave to
file a second amended complaint. In their motion, Plaintiffs premise the Court’s authority to grant leave on Rule 15(a) of the Federal Rules of Civil Procedure. But “Rule 15(a),
by its plain language, governs amendment of pleadings before judgment is entered; it
has no application after judgment is entered.” Jacobs v. Tempur-Pedic Int’l, 626 F.3d 1327,
1344 (11th Cir. 2010) (emphasis in original).
Because the Court has denied Plaintiffs’ Motion for Reconsideration and the
judgment remains in this case, the motion for leave to file an amended complaint is
DENIED.

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CONCLUSION
For those reasons, Plaintiffs’ Motion for Reconsideration (Doc. 39) and Motion
for Leave to File Second Amended Complaint (Doc. 38) are DENIED.
SO ORDERED, this _

27th day of January, 2014.

_W. Louis Sands
_
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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