PARKER v. CAPITAL ONE AUTO FINANCE, CAPITAL ONE, NATIONAL ASSOCIATION N.A. et al

Filing 120

ORDER - For the reasons set forth herein, Ms. Parker's Motion for Leave to File Second Amended Complaint is DENIED. 95 Ms. Parker's Motion to Set Aside/Vacate Order of Dismissal and Add Capital One and Onyx Back Into Action is also DENIED . 115 . Capital One and Onyx's request for the Court to enter partial final judgment in their favor pursuant to Federal Rule of Civil Procedure 54(b) is GRANTED. 106 The Court will enter partial final judgment in favor of Capital One and Onyx by separate entry, and the Clerk is directed to TERMINATE those parties on the docket. The Court DIRECTS the Clerk to UPDATE the docket to reflect Defendant Dalias' actual name--Mark Senesac. The Court GRANTS Ms. Parker's extension request given the various rulings the Court has issued today, and ORDERS Ms. Parker to file a response to the City Defendants' Motion for Summary Judgment by June 12, 2017. Ms. Parker should not anticipate further extensions of that deadline. She shoul d also be sure to thoroughly review the Notice Regarding Right to Respond to and Submit Evidence in Opposition to Motion for Summary Judgment. 112 . SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 4/28/2017. (JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRENDA PARKER,
Plaintiff,
vs.
CAPITAL ONE AUTO FINANCE a division
of Capital One N.A.,
ONYX ACCEPTANCE CORPORATION,
OFFICER LOYAL in official and individual
capacity,
OFFICER PILKINGTON in official and
individual capacity,
OFFICER ROLINSON in official and
individual capacity,
DALIAS,
CITY OF INDIANAPOLIS,
Defendants.

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No. 1:15-cv-00826-JMS-TAB

ORDER
Presently pending before the Court is pro se Plaintiff Brenda Parker’s Motion for Leave to
File Second Amended Complaint. [Filing No. 95.] Defendants City of Indianapolis, Officer
Loyal, Officer Pilkington, and Officer Rolinson (collectively, the “City Defendants”) object to Ms.
Parker’s request to amend her pleadings. [Filing No. 101.] Defendants Capital One Auto Finance,
a division of Capital One N.A. (“Capital One”), and Onyx Acceptance Corporation (“Onyx”)
object to Ms. Parker’s request to amend her pleadings, and they also ask this Court to enter partial
final judgment in their favor pursuant to Federal Rule of Civil Procedure 54(b). [Filing No. 106.]
Ms. Parker has also filed a Motion to Set Aside/Vacate the Court’s December 2015 Order
dismissing Capital One and Onyx, [Filing No. 115], and the Court will also address that request in
this Order as well.

I.
BACKGROUND
As summarized by the Court’s Screening Order, Ms. Parker’s claims
arise out of circumstances surrounding and preceding the repossession of her
vehicle in May of 2014. She called the police at the time the vehicle was being
towed and told officers that the creditor had “charged off” the debt in 2012
when it reported the car loan to be an uncollectible debt. The officers reviewed
papers that the towing company had, determined that the towing company’s
paperwork was more current than [Ms. Parker’s paperwork], and allowed the
towing company to repossess her car.
[Filing No. 21 at 2.] In its Screening Order, the Court dismissed some of Ms. Parker’s claims,
including her equal protection and 42 U.S.C. § 1985 claims; her civil conspiracy claim under 18
U.S.C. § 241; her claim under 42 U.S.C. § 1983 against various private actors; her claim for
violations of IRS Publication 535; and her official capacity claims against the officer defendants.
[Filing No. 21.] The Court allowed the following claims to proceed: Count IV (a Fair Debt
Collection Practices Act claim against Capital One and Onyx)); Count V (a Fair Credit Reporting
Act claim against Capital One and Onyx); and Count VII (due process claim pursuant to 42 U.S.C.
§ 1983 against the City Defendants). [Filing No. 21.]
Capital One and Onyx filed a Motion to Dismiss Ms. Parker’s claims against them, which
the Court granted on December 3, 2015. [Filing No. 45.] Ms. Parker filed multiple motions that
the Court treated as a request for reconsideration, and the Court denied that request. [Filing No.
56.] The Court has not entered partial final judgment on Ms. Parker’s claims against Capital One
and Onyx.
On January 22, 2016, the assigned Magistrate Judge entered a Case Management Plan.
[Filing No. 59.] A joint motion to extend certain dates was granted on December 20, 2016, and
the following dates were established:

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[Filing No. 81 at 1.]
On March 6, 2017, Ms. Parker filed a Motion to Amend/Correct her Amended Complaint,
[Filing No. 95], and submitted a proposed Second Amended Complaint, [Filing No. 95-2]. The
City Defendants object to Ms. Parker’s request to amend her pleadings. [Filing No. 101.] Capital
One and Onyx object to Ms. Parker’s request to amend her pleadings and also ask this Court to
enter partial final judgment in their favor pursuant to Federal Rule of Civil Procedure 54(b).
[Filing No. 106.] Ms. Parker did not file a reply brief or a response to Capital One and Onyx’s
request for entry of partial final judgment.
II.
DISCUSSION
A. Ms. Parker’s Motion for Leave to File Second Amended Complaint
Ms. Parker asks for leave to file a Second Amended Complaint, emphasizing that leave to
amend pleadings should be freely given and arguing that Defendants will not be prejudiced by her
amendment. [Filing No. 95 at 3.] Ms. Parker submits her proposed Second Amended Complaint,
[Filing No. 95-2], but she does not specifically identify the differences between those filings other
than noting she seeks to make additional factual allegations against the City Defendants and
reassert her claims against Capital One and Onyx, [Filing No. 95 at 2-3]. It appears that Ms. Parker
seeks to make new factual allegations, add claims that this Court already dismissed in its Screening
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Order, reassert dismissed claims against Capital One and Onyx, and add two new parties to this
litigation.1
The City Defendants object to Ms. Parker’s request, pointing out that her motion was filed
approximately one week after the deadline to do so had passed. [Filing No. 101 at 1-2.] The City
Defendants argue that they would be prejudiced by the amendment because Ms. Parker attempts
to reassert previously dismissed claims and they have not conducted discovery on those claims.
[Filing No. 101 at 3.] The City Defendants emphasize that Ms. Parker filed her motion on the eve
of the dispositive motions deadline and that it is not necessary for her to amend her pleading to
add additional facts because she can rely on evidence supporting those facts in response to the City
Defendants’ forthcoming motion for summary judgment. [Filing No. 101 at 3.]
Capital One and Onyx object to Ms. Parker’s request, also pointing out that Ms. Parker’s
motion was filed after the deadline to amend her pleadings. [Filing No. 106 at 1.] Capital One
and Onyx emphasize that the Court has already dismissed Ms. Parker’s claims against them on the
merits and upheld that decision after Ms. Parker asked it to reconsider. [Filing No. 106 at 2.]
Capital One and Onyx also argue that Ms. Parker’s claims are barred by res judicata because they
were defendants in a state court action brought by Ms. Parker and adversely decided against her.
[Filing No. 106 at 3-6; Filing No. 105-1 to Filing No. 105-6 (filings from state court case).]

The Court has reviewed Ms. Parker’s Amended Complaint, [Filing No. 11], and her proposed
Second Amended Complaint, [Filing No. 95-2], and attempted to address the differences between
those pleadings. To the extent the Court overlooked any differences between those pleadings and
they are not addressed herein, Ms. Parker has waived any such argument because she did not more
specifically identify the differences between the Amended Complaint and her proposed Second
Amended Complaint in her Motion for Leave. [Filing No. 95.]
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Ms. Parker did not file a reply brief, but she did separately file a Motion to Set Aside/Vacate
Order of Dismissal and Add Capital One and Onyx Back Into Action. [Filing No. 115.] Capital
One and Onyx responded in opposition to that motion. [Filing No. 118.]
Generally, a motion for leave to amend a complaint is evaluated under Federal Rule of
Civil Procedure 15(a)(2), which provides that courts “should freely give leave when justice so
requires.” Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). That said, leave to amend
is not automatic, and the Court has “broad discretion to deny leave to amend where there is undue
delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile.” Standard v. Nygren, 658 F.3d 792, 797
(7th Cir. 2011).
Although Ms. Parker filed her Motion for Leave to Amend her Complaint almost one week
after the deadline to do so had passed, the Court will still consider her request on the merits because
her previous request to extend that deadline—filed approximately two weeks earlier—was still
pending.2 [Filing No. 89.] Even considering the merits of Ms. Parker’s request and that leave to
amend a complaint is typically freely given, the Court must deny Ms. Parker’s request for these
reasons:


Ms. Parker’s proposed Second Amended Complaint makes factual allegations
against the City Defendants in this action that are more extensive than she made
in the Amended Complaint currently controlling these proceedings. [Compare
Filing No. 11 and Filing No. 95-2.] Ms. Parker’s proposed Second Amended
Complaint does not, however, seek to assert new legal claims against the City

2

In the future, Ms. Parker must be sure to timely submit filings by the deadline to do so, even if a
request to extend that deadline is pending.
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Defendants. It is unnecessary for Ms. Parker to amend her complaint to rely on
evidence supporting these new factual allegations to attempt to defeat the City
Defendants’ recently filed Motion for Summary Judgment. [Filing No. 109.]
Moreover, allowing her to amend her complaint to do so would prejudice the
City Defendants because it would moot their pending Motion for Summary
Judgment. Accordingly, the Court denies Ms. Parker’s request to file a Second
Amended Complaint on this basis.


Ms. Parker’s proposed Second Amended Complaint asserts claims that the
Court previously dismissed pursuant to the Screening Order issued pursuant to
28 U.S.C. § 1915(e)(2) on September 1, 2015. [Filing No. 21; Filing No. 952.] Ms. Parker’s Motion for Leave to Amend her Complaint ignores that these
claims and defendants have previously been dismissed as a matter of law for
various legal insufficiencies, rendering her request to reassert them eighteen
months later futile.



Ms. Parker’s proposed Second Amended Complaint asserts claims against
Capital One and Onyx that survived the Court’s Screening Order but were later
dismissed as a matter of law pursuant to Federal Rule of Civil Procedure
12(b)(6). [Filing No. 21; Filing No. 45; Filing No. 95-2.] Ms. Parker’s Motion
for Leave to Amend her Complaint ignores that her claims against Capital One
and Onyx have previously been dismissed as a matter of law for various legal
insufficiencies, rendering her request to reassert them now futile. Additionally,
the Court agrees with Capital One and Onyx that Ms. Parker’s claims against
them are barred by res judicata because the claims she seeks to assert against
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them in her proposed Second Amended Complaint were either asserted in a
state court proceeding and adversely decided against Ms. Parker or could have
been asserted in that state court proceeding. See Bell v. Taylor, 827 F.3d 699,
706 (7th Cir. 2016) (“Res judicata, or claim preclusion, bars any claims that
were litigated or could have been litigated in a previous action when three
requirements are met: (1) an identity of the causes of action; (2) an identity of
the parties or their privies; and (3) a final judgment on the merits. . . . Res
judicata bars not only those issues which were actually decided in a prior suit,
but also all issues which could have been raised in that action.”). Accordingly,
Ms. Parker’s request to amend her complaint to assert claims against Capital
One and Onyx as set forth in her proposed Second Amended Complaint is
denied as futile.


Ms. Parker’s proposed Second Amended Complaint identifies current
Defendant “Dalias” as Mark Senesac and asserts claims against Mr. Senesac for
his involvement as “the tow truck driver, who illegally repossessed Plaintiff’s
vehicle.” [Filing No. 95-2.] Ms. Parker’s due process claim brought under 42
U.S.C. § 1983 against the then-unidentified Defendant “Dalias”—now known
to be Mr. Senesac—survived the Court’s screening. [Filing No. 21 at 7.] But
Ms. Parker need not amend her complaint to assert this claim against Mr.
Senesac since it is already pending in this action. Instead, the Court DIRECTS
the Clerk to UPDATE the docket to reflect Defendant Dalias’ actual name—
Mark Senesac. The Clerk is also designated to issue process to Mr. Senesac in
the manner specified by Federal Rule of Civil Procedure 4(d). Process shall
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consist of the Amended Complaint, [Filing No. 11], applicable forms, the
Screening Entry, [Filing No. 21], and this Order.


Ms. Parker’s proposed Second Amended Complaint seeks to add ARSIprstaging (“ARS”) as a party to this action. Ms. Parker’s proposed Second
Amended Complaint alleges that ARS is “the company Capital One Auto
Finance contracted with to illegally repossess Plaintiff Parker’s vehicle.”
[Filing No. 95-2 at 2.] Other than making this allegation, Ms. Parker does not
assert any legal claims against ARS. [Filing No. 95-2 at 18-34 (the claims Ms.
Parker seeks to assert, not identifying ARS in any of them).] To the extent Ms.
Parker is asserting claims against ARS, they would either be in line with the
claims asserted against Defendants 5 Star Automotive and All American
Towing—which the Court dismissed in the Screening Order—or in line with
the claims against Capital One and Onyx—which the Court later dismissed as
a matter of law pursuant to Federal Rule of Civil Procedure 12(b)(6). [Filing
No. 21; Filing No. 45; Filing No. 56.] For these reasons, the Court concludes
that Ms. Parker’s request to amend her complaint to add ARS as a party is futile.

The Court concludes that Ms. Parker has not established any basis to amend her complaint
and, accordingly, the Court DENIES her Motion for Leave to do so. [Filing No. 95.]
B. Ms. Parker’s Motion to Set Aside
Ms. Parker has filed a Motion to Set Aside/Vacate the Court’s Order dismissing Capital
One and Onyx from this action. [Filing No. 115.] She contends that their Motion to Dismiss,
which the Court granted in December 2015, is “still frivolous” and now she has evidence to pursue
all of her claims against them. [Filing No. 115 at 2.] Ms. Parker argues that Capital One and Onyx
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committed fraud in state and federal court and she asks this Court to “examine the order entered
fraudulently by another Judge [in state court]” as well as other decisions by various judges in her
state court case. [Filing No. 115 at 5-7.] She accuses two state court judges of “fraud and
corruption” and also accuses Capital One and Onyx of being “possessed with a ‘Judas Spirit.’”
[Filing No. 115 at 8.] Ms. Parker believes that Capital One and Onyx are conspiring with “the
Musketeers and all Defendants in this action” and that they attempted to have her falsely arrested
for disturbing the peace while she was quietly enjoying her privacy within her apartment. [Filing
No. 115 at 10.]
In response, Capital One and Onyx ask the Court to deny Ms. Parker’s Motion to Set Aside.
[Filing No. 118.] They cite the Court’s rationale for dismissing Ms. Parker’s FDCPA and FCRA
claims against them in this litigation, which the Court reaffirmed in denying Mr. Parker’s request
to reconsider that decision. [Filing No. 118 at 1-3.] Capital One and Onyx also point out that Ms.
Parker subsequently filed a state court action against them, and they argue that res judicata and
the Rooker-Feldman doctrine bar Ms. Parker’s attempt to reassert claims against them now in
federal court. [Filing No. 118 at 3-4.]
The Court stands by the rationale set forth its previous decision to dismiss Ms. Parker’s
claims against Capital One and Onyx as a matter of law in December 2015. [Filing No. 45.] Ms.
Parker has already asked the Court to reconsider that decision once, and the Court denied that
request in a nine-page Order. [Filing No. 56.] Ms. Parker now attempts to bring Capital One and
Onyx back into this action because of allegedly new evidence, but for the reasons stated in the
prior section, the Court agrees with Capital One and Onyx that Ms. Parker’s claims against them
are barred by res judicata because they were either asserted in her state court proceeding and
adversely decided against her or they could have been asserted in that state court proceeding. See
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Bell, 827 F.3d at 706 (“Res judicata, or claim preclusion, bars any claims that were litigated or
could have been litigated in a previous action when three requirements are met: (1) an identity of
the causes of action; (2) an identity of the parties or their privies; and (3) a final judgment on the
merits. . . . Res judicata bars not only those issues which were actually decided in a prior suit, but
also all issues which could have been raised in that action.”).
Additionally, in her Motion to Set Aside, Ms. Parker asks this Court to review various
decisions in her state court case against Capital One and Onyx that she contends were wrong and
the result of fraud. [Filing No. 115.] This Court cannot do that pursuant to the Rooker-Feldman
doctrine, which prohibits federal jurisdiction over claims seeking review of state court judgments
“no matter how erroneous or unconstitutional the state court judgment may be.” Kelley v. Med-1
Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008) (citation omitted). Instead, Ms. Parker’s proper
course of action to challenge those decisions would be to appeal her state court case to the Indiana
Court of Appeals at the appropriate time.
For these reasons, Ms. Parker’s Motion to Set Aside/Vacate Order of Dismissal and Add
Capital One and Onyx Back Into Action is DENIED. [Filing No. 115.]
C. Capital One and Onyx’s Motion for Entry of Partial Final Judgment
In response to Ms. Parker’s request to amend her complaint, Capital One and Onyx ask this
Court to enter partial final judgment in their favor on Ms. Parker’s claims against them pursuant
to Federal Rule of Civil Procedure 54(b). [Filing No. 106 at 5-6.] Ms. Parker did not respond to
this request.
Federal Rule of Civil Procedure 54(b) provides that when multiple parties are involved in
an action, the Court can “direct entry of a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that there is no just reason for delay.” The
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Seventh Circuit Court of Appeals has “insisted that Rule 54(b) be employed only when the subjects
of the partial judgment do not overlap with those remaining in the district court.” Lottie v. W. Am.
Ins. Co., of Ohio Cas. Grp. of Ins. Companies, 408 F.3d 935, 938-39 (7th Cir. 2005).
The Court dismissed Ms. Parker’s claims against Capital One and Onyx on the merits in
December 2015. [Filing No. 45.] Since that time, the Court has denied Ms. Parker’s request to
reconsider that decision, [Filing No. 56], and Ms. Parker has unsuccessfully pursued claims against
Capital One and Onyx in state court, [Filing No. 105-1 (state court complaint filed January 2016);
Filing No. 105-4 (state court order dismissing claims against Capital One and Onyx with
prejudice)]. Despite this, Ms. Parker has again sought to reassert her claims against Capital One
and Onyx in this litigation, [Filing No. 95; Filing No. 115], but the Court has now denied her
request for the reasons stated in the previous sections. Given that Ms. Parker’s claims against
Capital One and Onyx—and the basis for the Court’s decision to dismiss those claims on the
merits—are wholly distinct from the due process/conspiracy claim pursuant to 42 U.S.C. § 1983
that remains pending against the remaining Defendants in this litigation, the Court agrees with
Capital One and Onyx that there is no just reason for delay and that partial final judgment should
be entered in their favor pursuant to Federal Rule of Civil Procedure 54(b) at this time.
III.
CONCLUSION
For the reasons set forth herein, Ms. Parker’s Motion for Leave to File Second Amended
Complaint is DENIED. [Filing No. 95.] Ms. Parker’s Motion to Set Aside/Vacate Order of
Dismissal and Add Capital One and Onyx Back Into Action is also DENIED. [Filing No. 115.]
Because the Court finds no just reason for delay, Capital One and Onyx’s request for the Court to
enter partial final judgment in their favor pursuant to Federal Rule of Civil Procedure 54(b) is

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GRANTED. [Filing No. 106.] The Court will enter partial final judgment in favor of Capital One
and Onyx by separate entry, and the Clerk is directed to TERMINATE those parties on the docket.
The Court DIRECTS the Clerk to UPDATE the docket to reflect Defendant Dalias’ actual
name—Mark Senesac. The Clerk is also designated to issue process to Mr. Senesac in the manner
specified by Federal Rule of Civil Procedure 4(d). Process shall consist of the Amended
Complaint, [Filing No. 11], applicable forms, the Screening Entry, [Filing No. 21], and this Order.
The City Defendants have moved for summary judgment in their favor and that motion
remains pending. [Filing No. 109.] Ms. Parker’s response to that motion is currently due by May
1, 2017. [Filing No. 112.] Ms. Parker has filed a Partial Motion for Extension of Ordered Case
Management Date for Summary Judgment Motion, requesting an extension of this deadline.
[Filing No. 114.] The Court GRANTS Ms. Parker’s extension request given the various rulings
the Court has issued today, and ORDERS Ms. Parker to file a response to the City Defendants’
Motion for Summary Judgment by June 12, 2017. Ms. Parker should not anticipate further
extensions of that deadline. She should also be sure to thoroughly review the Notice Regarding
Right to Respond to and Submit Evidence in Opposition to Motion for Summary Judgment.
[Filing No. 112.]

Date: April 28, 2017

Distribution via US Mail:
BRENDA PARKER
1427 W. 86TH STREET
#609
INDIANAPOLIS, IN 46260

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Mark Senesac
1900 Hart Street, Suite 37D
Dyer, IN 46311
Electronic Distribution via CM/ECF:
Pamela G. Schneeman
OFFICE OF CORPORATION COUNSEL
[e-mail]
James J. Morrissey
PILGRIM CHRISTAKIS
[e-mail]
Andrew R. Duncan
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]
Edward J. Merchant
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]
John F. Kautzman
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]

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