DEMILIO v. CITIZENS HOME LOANS INC et al
Filing
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ORDER Directing Parties to Clarify Privity of Defendants. Defendants' brief shall be submitted no more that 21 days from the date of this Order. Plaintff's responsive brief is due within 14 days thereafter. Ordered by Judge C. Ashley Royal on 11/2/12. (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
THOMAS J. DEMILIO,
:
:
Plaintiff,
:
:
v.
:
:
CITIZENS HOME LOANS, INC.;
:
RALI 2007‐QH9 TRUST as
:
CIVIL ACTION
administered by DEUTSCHE BANK :
No. 3:12‐CV‐81 (CAR)
TRUST COMPANY AMERICAS, its :
Trustee; RESIDENTIAL FUNDING :
COMPANY, LLC; AURORA BANK :
FSB, RUSSELL MAYS, et al.,
:
:
Defendants.
:
___________________________________ :
ORDER DIRECTING PARTIES TO CLARIFY PRIVITY OF DEFENDANTS
Defendants, Aurora Bank FSB (“Aurora”) and Deutsche Bank Trust Company
Americas as Trustee for RALI 2007‐QH9 (“Deutsche Bank”) (collectively,
“Defendants”), have moved this Court to dismiss Plaintiff Thomas J. DeMilio’s
Complaint [Doc. 1] pursuant to the doctrine of res judicata [Doc. 4]. Res judicata, or
claim preclusion, is appropriate when a moving party demonstrates (1) there was a
previous, final judgment on the merits; (2) the decision was rendered by a court of
competent jurisdiction; (3) the parties, or those in privity with them, are identical in
both suits;1 and (4) the same cause of action is involved in both cases. 2 Having carefully
considered the parties’ briefs, pleadings, and appropriate filings attached thereto, the
Court is not satisfied by the parties’ vague and conclusory recitation of “privity”—or
lack thereof—between Defendants in the present action and those in DeMilio v. Aurora
Bank FSB, et al., No. 3:12‐CV‐17‐CDL.
In their present filings, Defendants baselessly declare that “it is without serious
question that all parties to this action were either parties to the First Litigation or are in
privity with those parties to the First Litigation,”3 while Plaintiff simply “denies there is
identity of parties.”4 Neither Plaintiff nor Defendants reference any legal authority for
these assertions, whether binding or persuasive. Further complicating this matter,
Defendants may present “the relatively new question of whether a servicer and lender
(or its assignee …) are in privity for purposes of res judicata.”5
The Court concludes it is not in the interests of justice to evaluate a novel
question of law6 or divine the appropriate characterization of Defendants’ relationships
1 In particular, the Supreme Court has limited nonparty preclusion to six categories, including preclusion
by (1) express agreement; (2) preexisting substantive legal relationships; (3) prior, adequate
representation; (4) assumption of control over prior litigation; (5) relitigation through proxy; and (6)
specific statutory schemes. Taylor v. Sturgell, 553 U.S. 880, 893‐95 (2008) (disapproving the theory of
privity by “virtual representation”).
2 Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
3 [Doc. 4‐1 at 12].
4 [Doc. 11 at 6].
5 Duke v. Nationstar Mortgage, LLC, No. 2:12‐cv‐00157, 2012 WL 3852121, at *7 (N.D. Ala. Aug. 30, 2012)
(citing several district courts that have addressed this issue).
6 The Court recognizes that this “novel” question may be a non‐issue, which is dependent on the parties’
theory of privity between Defendants of this case and its legally relevant predecessor.
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without further clarification by both parties. Accordingly, the Court HEREBY
DIRECTS both parties to file supplemental briefs that evaluate the privity of
Defendants as required by res judicata analysis. Parties shall provide (1) a succinct
description of all Defendants’ alleged factual relations; (2) a legal basis for asserting that
privity does or does not exist between all Defendants of the present case and those of
DeMilio v. Aurora Bank FSB, et al., No. 3:12‐CV‐17‐CDL; and (3) application of these
factual allegations to binding or persuasive legal authority. The Court reminds the
parties that these briefs are made in contemplation of Defendants’ Motion to Dismiss
[Doc. 4]. Therefore, the Court will limit its consideration of this Motion to the pleadings
and those exhibits which are undisputed and central to Plaintiff’s claims.7
Defendants’ supplemental brief shall be submitted no more than TWENTY‐ONE
(21) DAYS from the date of this Order. Thereafter, Plaintiff will file a responsive brief
within FOURTEEN (14) DAYS of Defendants’ submission. Upon receipt of the parties’
responses to this Order, the Court will consider Defendants’ pending Motion to Dismiss
[Doc. 4] and Motion to Strike Plaintiff’s Affidavit [Doc. 14].
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
Because Defendants claim the present case is barred by res judicata, the Court will take judicial notice of
pleadings and motions filed in Plaintiff’s previous action. Horne v. Potter, 392 F. App’x 800, 802 (11th Cir.
2010).
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SO ORDERED, this 2nd day of November, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
BBP/lmh
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