DeWayne v. J.P. Morgan Mortgage Acquisition Corp. et al

Filing 94

District Judge Leo T. Sorokin: ORDER entered. Plaintiffs filing at Doc. No. 90 may be properly construed as amotion to remand, it is DENIED. JP Morgan Acquisition's motion to dismiss, Doc. No. 61, is ALLOWED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BISHOP RUBEN DEWAYNE,
Plaintiff,
v.
J.P. MORGAN MORTGAGE
ACQUISITION CORP., and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.

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Civil No. 18-10931-LTS

ORDER
April 5, 2019
SOROKIN, J.
Pro se plaintiff Bishop Ruben DeWayne brought suit against defendants JP Morgan
Mortgage Acquisition Corp. (“JP Morgan Acquisition”) and Mortgage Electronic Systems, Inc.
(“MERS”) for alleged unfair and deceptive acts pursuant to Mass. Gen. Laws ch. 93A. This case
has been pending before Judge Talwani. 1 In December 2018, the Court denied plaintiff’s
motions to remand and for a temporary injunction and granted MERS’ motion to dismiss. Doc.
Nos. 52, 53. In January, the Court also allowed JP Morgan Acquisition’s motion to dismiss,
which plaintiff had not opposed. Doc. No. 72. Thereafter, it became known that the plaintiff
may not have been served with JP Morgan Acquisition’s motion to dismiss and accompanying
memorandum of law. Doc. Nos. 79, 82. The Court therefore vacated the portion of the prior

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This case was initially randomly assigned to Judge Gorton, who recused in June 2018. Doc.
No. 13. The case was thereafter randomly assigned to Judge Young, who transferred it to Judge
Talwani in October 2018, under Local Rule 40.1(g), as a related matter. Doc. No. 42.

Order which allowed the motion to dismiss and ordered plaintiff to respond within 28 days. Doc.
No. 84. Plaintiff filed two memoranda in opposition to JP Morgan Acquisition’s motion to
dismiss. Doc. Nos. 88, 89. Thereafter, Judge Talwani recused herself, Doc. No. 91, and the case
was randomly reassigned to the undersigned. Doc. No. 93. Now pending before the Court is JP
Morgan Acquisition’s motion to dismiss. Doc. No. 61.
One preliminary matter requires attention. On March 29, 2019, plaintiff filed a “formal
notice of leave of absence” which contains a sentence saying “demand to remand issued.” Doc.
No. 90. Plaintiff simply appears to be giving the Court notice that he “cannot respond, reply
answer any paper, writ, or otherwise attend any hearings or meetings” for a two-week period of
time. Id. at 1-2. However, to the extent the filing can be construed as a motion to remand, that
motion is DENIED for the reasons expressed in the previous order denying remand, Doc. No. 52.
The Court has carefully reviewed, de novo, JP Morgan Acquisition’s motion to dismiss
for failure to state a claim and plaintiff’s oppositions. The Court evaluates the complaint
pursuant to the standard applicable to motions to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (holding that to survive a motion to dismiss under Rule 12(b)(6), a complaint must
contain sufficient factual allegations to “state a claim to relief that is plausible on its face.”)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court finds that for the
reasons expressed in the prior Order, plaintiff’s complaint must be dismissed on grounds of
claim preclusion. Doc. No. 72. “[T]he essential elements of claim preclusion are (1) a final
judgment on the merits in an earlier action; (2) an identity of the cause of action in both the
earlier and later suits; and (3) an identity of parties or privies in the two suits.” Kale v.
Combined Ins. Co. of Am., 924 F.2d 1161, 1165 (1st Cir. 1991). In this case, all three elements

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are met for the reasons expressed in the prior Order allowing the motion to dismiss. Doc. No.
72.
Accordingly, to the extent plaintiff’s filing at Doc. No. 90 may be properly construed as a
motion to remand, it is DENIED. JP Morgan Acquisition’s motion to dismiss, Doc. No. 61, is
ALLOWED.

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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