Grandoit v. Robinson et al

Filing 28

Judge Joseph L. Tauro: ORDER entered. The summonses are rescinded and plaintiff is prohibited from attempting to effectuate service of process on defendants. If process has already been served, defendants shall not be obligated to file a responsive pleading to this action. This action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiffs pending motions (Nos. 19-20, 22, 27) are denied. The Court certifies that any appeal of this Memorandum and Order would not be taken in good faith.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GERARD D. GRANDOIT,
Plaintiff,
v.
CATHERINE M. ROBINSON, et al.,
Defendants.

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C.A. No. 11-11404-JLT

MEMORANDUM AND ORDER
For the reasons set forth below, (1) the previously issued
summonses

are

rescinded;

(2)

plaintiff’s

pending

motions

are

denied; (3) this action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B); and (4) the Court certifies that any appeal would
not be taken in good faith.
BACKGROUND
On August 3, 2011, Gerard D. Grandoit, a frequent litigant in
this Court, filed a pro se complaint seeking to recover damages
under various theories of law resulting from defendant Robinson’s
attempts to recover delinquent condominium fees that plaintiff owed
to the Homeowners Association for his condominium complex.
Seventeen months later, this action was assigned randomly to
the undersigned due to Judge Wolf’s taking of senior status.
01/02/2013 Electronic Notice of Reassignment, Docket No. 4.

See
At

that time, plaintiff’s motion for leave to proceed in forma
pauperis was granted and plaintiff was directed to show good cause
why this action should not be dismissed.

See Docket No. 5.

Plaintiff was warned that he could be enjoined from filing further

actions absent judicial permission and/or that he could be subject
to monetary sanctions should he make frivolous and/or unreasonable
submissions to the Court.

Id.

Since that time, plaintiff filed a response to the show cause
order (#7) dated February 13, 2013; an amended complaint (#15)
dated June 14, 2013; a second amended complaint (#18) dated August
27, 2013, and a third amended complaint dated September 6, 2013.
By Order dated August 20, 2013, plaintiff was ordered to serve
defendants and on August 30, 2013, the Clerk issued summonses. See
Docket.

Plaintiff subsequently filed several motions seeking an

extension of time to serve defendant Catherine M. Robinson and
permission to file a third amended complaint.

See Docket Nos. 19-

20, 22, 27.
DISCUSSION
1.

Plaintiff’s Proposed Fourth Amended Complaint

Here, plaintiff seeks to strike his second amended complaint
and seeks permission to file a proposed fourth amended complaint.
The Court recognizes that "leave to amend should be ‘freely
give[n]' in instances in which ‘justice so requires.'"

See

Nikitine v. Wilmington Trust Co., 715 F.3d 388, 390 (1st Cir. 2013)
(quoting Fed. R. Civ. P. 15(a)(2)).

However, in appropriate

circumstances, leave to amend may be denied.

Palmer v. Champion

Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (affirming denial of motion
to amend that was filed over fifteen months after commencement of

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the action and more than nine months after initial amendment).
Although the Supreme Court stated that the mandate for liberal
amendment pursuant to Rule 15(a) “is to be heeded,” Foman v. Davis,
371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme
Court also recognized that "repeated failure to cure deficiencies
by amendments previously allowed" constitutes an appropriate ground
to deny leave to amend.

Id. at 182.

Here, plaintiff was provided with an opportunity, and took
advantage of such opportunity, to file an amended complaint.

He

subsequently filed second and third amended complaints and now
seeks permission to file a fourth amended complaint.

In the

Court’s estimation, plaintiff’s effort to file a fourth amended
complaint, more than eight months after issuance of the show cause
order and more than two years after the commencement of this
action, comes too late under Rule 15(a).

Thus, the June 14, 2013

amended complaint remains the operative pleading.
2.

The Amended Complaint is Subject to Dismissal

Because the plaintiff is proceeding in forma pauperis, his
amended

complaint

is

subject

to

screening

under

28

U.S.C.

§1915(e)(2).
The Court erroneously ordered plaintiff to serve the amended
complaint without first subjecting it to screening pursuant to
Section 1915(e)(2).

Because of this, the summonses are rescinded

and plaintiff is prohibited from attempting to effectuate service

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of process on defendants.

If process has already been served,

defendants shall not be obligated to file a responsive pleading to
this action.
As in his original complaint, plaintiff again complains that
defendant Robinson misrepresented the amount owed and failed to
properly inform him of her intent to file suit against him on
behalf of a condominium trust.

Plaintiff dropped his purported

claim under the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, and the
claims under the Fair Debt Collection Practices Act

(“FDCPA”), 15

U.S.C. § 1692, and M.G.L. ch. 93A, §§ 9(3), 9(3A) remain.
Although the twelve-page amended complaint is half the size of
the twenty-nine page original complaint, the amended complaint
fails to set forth a claim under the FDCPA.

The allegations in the

amended complaint consist primarily of conclusory statements that
simply recite the elements of a FDCPA claim.

As noted in the

Court’s January 2013 show cause order, plaintiff failed to satisfy
his burden of showing that defendant Robinson is a debt collector
within

the

meaning

of

the

FDCPA.1

Courts

have

interpreted

“regularly” to require that debt collection amount to a substantial
percentage of a person’s business or a large volume of collection

1

The FDCPA defines a “debt collector” as one who “regularly
collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.” 15 U.S.C. §
1692a(6); see Heintz v. Jenkins, 514 U.S. 291, 292 (1995) (FDCPA
“applies to a lawyer who ‘regularly,’ through litigation, tries
to collect consumer debts”) (emphasis omitted).
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activity.

See e.g. Camara v. Fleury, 285 F. Supp. 2d 90, 95 (D.

Mass. 2003) (holding that an attorney and his law firm were not
debt collectors where 4.57% of the firm’s business involved debt
collection activities).

Because the FDCPA’s prohibitions apply

only to debt collectors as defined by the FDCPA, the plaintiff must
plead factual content that allows the court to draw the reasonable
inference that the defendant is a debt collector.

See

Schlegel

v. Wells Fargo Bank, NA, 720 F.3d. 1204, 1208 (9th Cir. 2013)
(affirming dismissal of complaint for failure to sufficiently plead
that mortgagee was a debt collector).
As in the original complaint, plaintiff’s amended complaint
does not sufficiently assert that the law practice of defendant
Robinson has a principal purpose of collecting debts or that she
regularly collects or attempts to collect debts. Moreover, notably
absent

from

the

amended

complaint

are

the

attachments

that

accompanied plaintiff’s original complaint showing that he was
informed that defendant would pursue legal action.

I find that

plaintiff, through the amended complaint, has failed to demonstrate
good cause why this action should not be dismissed.
3.

Plaintiff's State Law Claims

Because the amended complaint is subject to dismissal for the
reasons stated above, supra., ¶ 2, grounds no longer exist for
federal subject matter jurisdiction over plaintiff's state law
claims.

Under 28 U.S.C. § 1367, "district court may decline to

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exercise supplemental jurisdiction" if "the district court has
dismissed all claims under which it has original jurisdiction." 28
U.S.C. § 1367(c); see Claudio-Gotay v. Becton Dickinson Caribe,
Ltd., 375 F.3d 99, 104 (1st Cir. 2004) (citing Rodriguez v. Doral
Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)("As a general
principle, the unfavorable disposition of a plaintiff's federal
claims at the early stages of a suit, well before the commencement
of trial, will trigger the dismissal without prejudice of any
supplemental state-law claims.").

Here, the Court will decline to

exercise pendent jurisdiction over plaintiff's state law claims.
4.

Certification That Any Appeal
Would Not be Taken in Good Faith

Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P.
24(a)(3), I find, and hereby certify, that any appeal by Grandoit
of the matters contained in this Memorandum and Order would not be
taken in good faith.

Such a certification prohibits in forma

pauperis status on appeal even though Grandoit has been found to be
indigent.
Under 28 U.S.C. § 1915(a)(3) “[a]n appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is
not taken in good faith.”

Id.

Similarly, under Fed. R. App. P.

24(a)(3)(A), a party who has been permitted to proceed in forma
pauperis in the district-court action, or who has been determined
to be financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis without
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further authorization unless the district court - before or after
the notice of appeal is filed - certifies that the appeal is not
taken in good faith or finds that the party is not otherwise
entitled to proceed in forma pauperis and states in writing its
reasons for the certification or finding.

Id.

Based on Grandoit’s litigation history, and the failure to
state any cognizable federal claims in this action, any appeal by
Grandoit of this matter would not be taken in good faith.

The

Court finds that any appeal would be one that plainly does not
deserve additional judicial attention.
ORDER
Accordingly, it is hereby ORDERED that:
(1)

The summonses are rescinded and plaintiff is prohibited
from attempting to effectuate service of process on
defendants.
If process has already been served,
defendants shall not be obligated to file a responsive
pleading to this action.

(2)

This action is
1915(e)(2)(B).

(3)

Plaintiff’s pending motions (Nos. 19-20, 22, 27) are
denied.

(4)

The Court certifies that any appeal of this Memorandum
and Order would not be taken in good faith.

DISMISSED

pursuant

to

28

U.S.C.

SO ORDERED.
September 30, 2013
DATE

/s/ Joseph L. Tauro
JOSEPH L. TAURO
UNITED STATES DISTRICT JUDGE

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