Innocent v. The Bank of New York Mellon et al

Filing 16

MEMORANDUM AND ORDER denying 14 Motion on Opposition of the Courts Memorandum and Opinion and Order, construed as a motion for reconsideration of the Order denying his Motion for Judgment on the Pleadings; dismissing the complaint in its entirety with prejudice. Signed by Judge Paul W. Grimm on 4/4/2016. (c/m 04/04/2016 bus, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
GERALD INNOCENT,
Plaintiff,

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v.

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THE BANK OF NEW YORK MELLON,
et al.,

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Case No.: PWG-15-951

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Defendants.

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MEMORANDUM AND ORDER
Plaintiff Gerald Innocent, who is proceeding pro se, filed suit against The Bank of New
York Mellon, as Trustee for CIT mortgage Loan Trust 2007-1, by Caliber Home Loans, Inc.,
Vericrest Financial Inc. (the "Bank") and attorneys McCabe Weisberg & Conway on April 2,
2015.

ECF No. 1. There is no indication on the docket that Innocent served either Defendant

with a Summons and Complaint, and the Bank challenged the service it received in its Motion to
Dismiss. Def.'s Mot. to Dismiss 1 n.1, ECF NO.4. Nonetheless, the Bank moved to dismiss for
failure to state a claim on April 15, 2016. Id. Innocent moved for judgment on the pleadings on
April 22, 2016, arguing that such a motion "is the proper procedure when all of the material
allegations of fact are admitted in the pleadings and only questions oflaw remain." ECF NO.9.
On February 2, 2016, finding that Innocent's claims were subject to dismissal, I denied
his motion.

Mem. Op. & Order, ECF No. 13. Additionally, I granted the Bank's Motion to

Dismiss and dismissed the claims against the Bank; and I dismissed sua sponte the claims
against Defendant McCabe Weisberg & Conway.

Id.

Yet I also afforded Innocent leave to

amend his complaint with regard to his Counts 4, 7, and 8 and his

S

1985 claim in Count 2 by

February 22, 2016 to specify exactly how Defendants' conduct is actionable and to address the
deficiencies identified in my February 2, 2016 Memorandum Opinion.

Id

I cautioned that

failure to do so timely would result in the dismissal of this case in its entirety with prejudice and
without further notice by the Court. Id I directed Innocent to comply with Local Rule 103.6(c)
in submitting an amended complaint, and warned that failure to do so would result in the striking
of the amended complaint and possible dismissal of this lawsuit with prejudice. Id
On February 23, 2016, after the time for Innocent to file an amended complaint had
expired, see id, Innocent filed a "Motion in Opposition of the Courts Memorandum and Opinion
and Order," ECF No. 14, which I construe as a motion for reconsideration of the Order denying
his motion for judgment.

See Fed. R. Civ. P. 1. According to Innocent, "Defendants did not

disagree with anything that was stated in the complaint," and therefore "the fact of the matter has
never been disputed." PI.' s Mot. 1. He appears to argue that, because Defendants did not file an
answer within twenty-one days of service, the Court erred in denying his motion. Id at 3.
A final judgment has not been entered in this case.

Rule 54(b) governs motions for

reconsideration of "any order or other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties." Fed. R. Civ. P. 54(b). It
provides that such an order "may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and liabilities." Id
Innocent's

motion does not meet the narrow criteria for granting

a motion

for

reconsideration. See Potter v. Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) ("A motion for
reconsideration is appropriate to 'correct manifest errors of law or fact or to present newly
discovered evidence,'

or where there has been an intervening change in controlling law."

(citations omitted)); see also Shields v. Shetler, 120 F.R.D. 123, 126 (D. Co. 1988) (observing

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that a motion for reconsideration "is not a license for a losing party's attorney to get a 'second
bite at the apple'''; cited in Potter); Pinney v. Nokia, Inc., 402 F.3d 430, 452-53 (4th Cir. 2005)
(stating in dicta that these "rules of constraint ... make sense when a district court is asked to
reconsider its own order" because '" [wJere it otherwise, then there would be no conclusion to
motions practice, each motion becoming nothing more than the latest installment in a potentially
endless serial that would exhaust the resources of the parties and the court-not

to mention its

patience'" (quoting Potter, 199 F.R.D. at 553)). In his view, it was an error oflaw to deny his
motion because Defendants had not filed a timely answer. It is true that Rule l2(a)(1) provides
that "[a] defendant must serve an answer ...
summons and complaint[.]"

within 21 days after being served with the

Fed. R. Civ. P. l2(a)(1)(A)(i) (emphasis added).

Yet, not only is

there no indication on the docket that Innocent served either Defendant, but also the Bank timely
filed a motion to dismiss in lieu of an answer. See Fed. R. Civ. P. l2(b)(6) (stating that a party
may bring a motion to dismiss for failure to state a claim before pleading); see also Fed. R. Civ.
P. l2(a)(4)(A) (stating that "[i]f the court denies the motion ... a responsive pleading must be
served within 14 days after notice of the court's action'}

Thus, neither Defendant was served,

and in any event, the Bank filed a timely response to Innocent's Complaint, and therefore it was
not an error of law to deny Innocent's motion. See Fed. R Civ. P. l2(a)-(c).

Innocent has failed

to demonstrate grounds for reconsideration, and therefore his motion is denied.
Moreover, in my February 2, 2016 Memorandum Opinion and Order, I observed that, as
written, it did not appear that Counts 4, 7, 8 and his

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1985 claim in Count 2 properly stated a

cause of action, and it was difficult to conceive of legally sufficient facts to support those claims.
As noted, I afforded Innocent until February 22, 2016 to file an amended complaint, and he

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failed to do so. Therefore, I will dismiss his Complaint in its entirety for the reasons explained in
the February 2, 2016 Memorandum Opinion and Order, I
Accordingly, it is,
1. Innocent's

thitf1'1 day of April, 2016, hereby ORDERED

that

"Motion in Opposition of the Courts Memorandum

and Opinion and

Order," ECF No. 14, construed as a motion for reconsideration of the Order denying
his Motion for Judgment on the Pleadings, IS DENIED;
2. Innocent's Complaint IS DISMISSED in its entirety with prejudice, for the reasons
explained in the February 2,2016 Memorandum Opinion and Order;
3. The Clerk SHALL MAIL a copy of the Memorandum and Order to Innocent; and
4. The Clerk SHALL CLOSE this case.

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Paul W. Grimm
United States District Judge

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Innocent also filed a "Notice of Removal Nunc Pro Tunc." ECF No. 15. He asserted that the
"case has been removed from the Circuit Court for Prince George's County," and that he filed
the Notice "to correct the original removal procedure." Id. If this is, indeed, a case that Plaintiff
removed from state court, it is noteworthy that the statutes providing for removal of state actions
to federal court only allow "the defendant," not the plaintiff, to remove the action. See 28 U.S.C.
S 1446(a) (providing that "[a] defendant or defendants desiring to remove any civil action from a
State court shall file in the district court of the United States ... a notice of removal ... ,
together with a copy of all process, pleadings, and orders served upon such defendant or
defendants in such action" (emphasis added)); see also 28 U.S.C. S 1443 (providing that "the
defendant" may remove certain "civil actions or criminal prosecutions, commenced in a State
court" that implicate the defendant's civil rights (emphasis added)). Thus, removal would have
been improper, and this, also, would provide a basis for dismissal of Innocent's Complaint.

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