Montgomery v. CitiMortgage, Inc. et al
Filing
50
ORDER granting 28 Motion to Intervene; granting 42 Motion to Dismiss; denying 46 Motion to Extend ; denying 22 Motion for Sanctions; denying 23 Motion for Summary Judgment; denying 27 Motion to Amend/Correct. Signed by District Judge Julian Abele Cook. (KDoa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D. MONTGOMERY,
Plaintiff,
Case No. 10-11729
Honorable Julian Abele Cook, Jr.
v.
CITIMORTGAGE, INC., ABN AMRO MORTGAGE
G R O U P , I N C . , E V E R G R E E N WO O D S
CONDOMINIUM ASSOCIATION, KRAMERTRIAD MANAGEMENT GROUP, LLC, GTJ
CONSULTING, LLC, ROSS TOWING AND USED
AUTO PARTS, 24261 Evergreen Road Southfield MI,
6576 Stonebridge E. West Bloomfield MI, and
FREDDIE MAC, MICHAEL E. KELLUM,
Defendants.
ORDER
The pro se Plaintiff, D. Montgomery, filed this lawsuit in the Oakland County Circuit Court
of Michigan in an effort to obtain injunctive relief and damages in excess of five-million
($5,000,000) against the Defendants1 for, inter alia, (1) engaging in unconscionable, unlawful,
unfair or deceptive business practices, and (2) wrongfully interfering with his right to occupy
and/or enforce construction liens against two properties in Southfield and West Bloomfield
Michigan. He claims to have been a rental tenant in one of the properties, commonly known as
24621 Evergreen Road in Southfield, Michigan (“Southfield property”). The other parcel at issue
is commonly known as 6576 Stonebridge East. in West Bloomfield (“West Bloomfield property”).
1
The Defendants named in this lawsuit are the Federal Home Loan Mortgage Corporation
(“Freddie Mac”), CitiMortgage (“CitiMortgage”), ABN AMRO Mortgage Group, Inc. (“ABN
AMRO ”), Evergreen Woods Condominium Association (“Evergreen Woods”), Kramer-Triad
Management Group (“ Kramer-Triad”), GTJ Consulting, LLC, Michael J. Kellum, and Ross
Towing and Used Auto Parts.
On April 28, 2010, Freddie Mac caused the litigation to be removed to this federal court.
Subsequent to the commencement of this lawsuit, the parties filed the following motions,
all of which are currently pending before the Court:
(1)
Montgomery’s motion for sanctions against Evergreen Woods;
(2)
Montgomery’s motion for summary judgment against Evergreen Woods;
(3)
Montgomery’s motion to amend his complaint;
(4)
Motion by a non-party, U.S. Bank National Association, (“U.S. Bank”) to intervene
into this lawsuit;
(5)
Motion by three of the Defendants (Kramer-Triad, Evergreen Woods, and Michael
Kellum) to dismiss this lawsuit; and
(6)
Motion by one of the Defendants (Freddie Mac) for an extension of time to file a
responsive pleading.2
Each motion will be considered seriatim.
I.
Many of the relevant facts which arise from Montgomery’s lawsuit have been articulated in
previous orders by the Court, and are only repeated here as necessary. In June of 2002, Ninevah
Rudolph (“Rudolph”) took out a mortgage in the amount of $114,000.00 against the Southfield
property.
The mortgage was assigned to ABN AMRO which subsequently merged with
CitiMortgage, Inc.
Montgomery, who claims to have been an occupant of the Southfield property as a tenant
since May of 2009, proclaims that he performed “emergency repairs” at the Southfield and West
Bloomfield properties. In an ostensible effort to protect his labors, he filed construction liens against
2
This motion by Freddie Mac appears to be based on the litigation history and pleading
schedule in a companion case, No. 11-10406, which has since been remanded to a state court.
Therefore, it will be denied for reasons of mootness.
2
both of these parcels.3
The record in this case indicates that Rudolph defaulted on her mortgage against the
Southfield property when she failed to make timely payments. Thereafter, foreclosure proceedings
relating to that parcel were initiated in October of 2009. Acting upon the validity of a sheriff’s sale
on January 5, 2010, Freddie Mac purchased the Southfield property and commenced eviction
proceedings against Rudolph and all of its occupants who had allegedly remained without authority
after the expiration of the redemption period.
In his complaint, Montgomery accuses the Defendants of conspiring to illegally remove him
from the Southfield property when they (1) forcibly entered the premises while he was out of town
on a “personal business” trip in early March of 2010, and (2) removed all of his personal properties
(including a motor vehicle) without a court order.4
Through this litigation, Montgomery seeks to obtain (1) damages, (2) a declaration from the
Court that his construction liens are legally superior to the claims of Freddie Mac and others, and (3)
authority to initiate his own foreclosure action in order to satisfy the construction liens.
On August 25, 2003, Rudolph, along with Bryant Lowery, obtained a separate mortgage for
$366,000 against the West Bloomfield property. This mortgage was recorded on March 1, 2004, and
executed in favor of Mortgage Electronic Registration Systems, Inc. as the nominee for the mortgage
3
According to documentation which was attached to Montgomery’s complaint in Case
No. 10-11729, the construction liens are for $17,237.23 and $97,427.78 against the Southfield
property and the West Bloomfield property, respectively.
4
Montgomery attached to his complaint a copy of the Southfield Police Department
report that had been initiated by him and authored by law enforcement officer, Rolando Rivera.
This report characterized the removal of the contents from Montgomery’s home as a “forced
entry / burglary.”
3
lender, Merrill Lynch Credit Corporation. Rudolph and Lowery defaulted on their mortgage loan by
failing to make timely payments. The commencement of foreclosure proceedings followed. A
sheriff’s sale took place on March 2, 2010. The ownership interests in this property were ultimately
conveyed to the U.S. Bank in the form of a quit-claim deed which bore the date of March 9, 2010.5
II.
The Court first turns to the motion by the U.S. Bank for authority to intervene into this lawsuit
as a matter of right. This motion is governed by Rule 24(a) of the Federal Rules of Civil Procedure,
which provides that a court must permit intervention by anyone who:
claims an interest relating to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical matter impair or
impede the movant's ability to protect its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. 24(a)(2). In interpreting this statute, the Sixth Circuit requires an entity attempting to
intervene as a matter of right to show that (1) the petition to intervene was timely filed; (2) the
proposed intervenor possesses a substantial legal interest in the case; (3) the proposed intervenor’s
ability to protect its interest will be impaired without intervention; and (4) the existing parties will
not adequately represent the proposed intervenor’s interest. Blount-Hill v. Zelman, 636 F.3d 278, 283
(6th Cir. 2011) (citing Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir.1999)). Every Blount-Hill
element is mandatory, and a failure by the applicant to satisfy all of the factors requires a court to
deny the motion for intervention. Id. (citing United States v. Michigan, 424 F.3d 438, 443 (6th
Cir.2005)).
The first Blount-Hill factor requires a showing that the intervention petition is timely. In an
5
The parties acknowledge that the expiration of the statutory redemption period under
Michigan law occurred on September 2, 2010.
4
effort to determine if the petition by the U.S. Bank satisfies the Sixth Circuit criteria, the Court looks
to five non-dispositive factors under the “totality of the circumstances” standard:
(1)
(2)
(3)
(4)
(5)
the point to which the lawsuit has progressed;
the purpose for which intervention is sought;
the length of time preceding the application during which the proposed
intervenors knew or should have known of their interest in the case;
the prejudice to the original parties due to the proposed intervenors’ failure to
promptly intervene after they knew or reasonably should have known of their
interest in the case; and
the existence of unusual circumstances militating against or in favor of
intervention.
Id. at 284 (citing Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990)). Although
Montgomery attempts to proffer several theories upon which he believes that the petition to intervene
by the U.S. Bank is untimely, the Court believes that only two of them appear to be reasonably
intelligible and warrant any further discussion.6
First, Montgomery argues that, inasmuch as the redemption period had not expired when the
U.S. Bank filed its motion, it was not “the real party in interest.” Thus, in his opinion, the U.S. Bank
had no legitimate basis upon which to seek an intervention into this lawsuit. Montgomery’s argument
must be rejected because the entire premise underlying Fed. R. Civ. P. 24 is to allow an intervention
by those parties who have an interest in the litigation, but may not be as directly impacted by the
outcome as one of the named litigants. See e.g., Providence Baptist Church v. Hillandale Committee,
6
Montgomery’s responsive pleading in opposition to the intervention request cites several
statutes (including Fed. R. Civ. P. 17(a)(1)(E) and Mich. Comp. Laws §§ 565.432, 565.433 and
451.404), both of which relate to the duties of a trustee over an express trust and/or a so-called
trust mortgage. Nevertheless, Montgomery has failed to establish that any of the issues in this
case arise out of an express trust, or that the properties at issue here are encumbered with a trust
mortgage. To the extent that his allegations of untimeliness depend on these issues, which
remain wholly undeveloped, Montgomery’s request to deny the intervention motion on these
grounds is denied.
5
Ltd. 425 F.3d 309, 315 (6th Cir. 2005) (“an intervenor need not have the same standing necessary to
initiate a lawsuit in order to intervene in an existing district court suit where the plaintiff has
standing.”).
Furthermore, Montgomery has not raised any legitimate challenge to the validity of the U.S.
Bank’s quit-claim deed to the West Bloomfield property. Yet, in the opinion of the Court, this
document solidifies the U.S. Bank’s status as an entity with a substantial interest in the outcome of
the litigation even though, it may not be a “real party in interest”- as characterized by Montgomery.
The Court must also reject his second argument, in which he submits that the U.S. Bank should
have attempted to intervene in April of 2010 when the lawsuit was first removed to this federal court.
To support this contention, he points out that the same law firm (i.e., Trott & Trott), which filed the
removal notice and handled the quit-claim deed when it was first assigned to the U.S. Bank in March
of 2010, now represents the assignee of that instrument. Based on these facts, Montgomery submits
that Trott & Trott should have notified its client of this lawsuit when this civil action was first
removed, thereby allowing the U.S. Bank to intervene a few months earlier. Nevertheless, the role
of the Court here is to judge the timeliness of the intervention effort based on the actions that were
taken by the presumptive intervenor rather than to assess the conduct of its counsel. Viewing the
record from this perspective, the Court finds that Montgomery has not offered any persuasive evidence
with which to contradict the U.S. Bank’s representation that it first learned of this lawsuit several
months after it had been filed. With recognition that minimal discovery or other progress had occurred
in the case when the motion to intervene was initially filed, the Court finds that the U.S. Bank’s
attempt to intervene was timely, and will not cause any measurable prejudice to Montgomery or the
other Defendants. The U.S. Bank has an important and unique interest in the West Bloomfield
6
property, and a denial to its efforts to intervene on timeliness grounds would serve no legitimate
purpose here.
The Court also concludes that the other Blount-Hill factors must be resolved in favor of
allowing the U.S. Bank to intervene. As noted earlier, it possesses a substantial legal interest in the
case inasmuch as it currently owns the West Bloomfield property by way of a quit claim deed (dated
March 9, 2010). Under Michigan law, the only way that the U.S. Bank could have been divested of
its interest in the West Bloomfield property is if Rudolph, Lowery, or some other interested party had
redeemed the property prior to the expiration of the redemption period, which has not been shown to
have occurred. See Mich. Comp. Laws § 600.3236. It is also apparent to the Court that, in the
absence of such an intervention, neither the U.S. Bank nor any other named party will be able to
adequately protect its interests during this litigation. In this regard, the record indicates that
Montgomery seeks to enforce a lien against the West Bloomfield property which he claims is legally
superior to the interests of the U.S. Bank and - in so doing - asks the Court to (1) quiet the title in his
favor, and (2) issue declaratory and injunctive relief that would, among other things, enable him to
foreclose on his lien. If Montgomery were successful, his victory would cast a significant doubt upon
the legitimacy of the U.S. Bank’s title in the West Bloomfield property. Depriving the U.S. Bank of
an opportunity to challenge this result would offend basic notions of due process and fairness,
especially where - as here - none of the other named Defendants appear to have any interest in the
West Bloomfield property. Because Fed. R. Civ. P. 24(a) and all of the Blount-Hill factors weigh in
favor of the U.S. Bank, the Court will grant the pending request to intervene into this lawsuit.
The Court has also been asked by the U.S. Bank to dismiss all of Montgomery’s claims that
pertain to the West Bloomfield property. Although it requests dismissal of his lawsuit on several
7
grounds, the Court finds one argument to be dispositive, i.e. the bank’s contention that Montgomery’s
claimed construction lien is legally invalid. To impose an enforceable construction lien against a
property, a claimant (such as Montgomery) must show that he has substantially complied with the
basic requirements of Mich. Comp. Laws. §§ 570.1101 - 570.1302. However, as the U.S. Bank
correctly argues here, Montgomery has neglected to proffer any evidence that (1) he had a written
contract with Rudolph and/or Lowery which covered the improvements as required by § 570.1114,
and (2) he was licensed to perform any of the identified improvements to a residential dwelling, as
required by § 570.1114 and § 339.2412.7 With reference to the first argument, § 570.1114 provides
that “[a] contractor does not have a right to a construction lien on the interest of an owner . . . in a
residential structure unless the contractor has provided an improvement to the residential structure
pursuant to a written contract between the owner . . . and the contractor . . . .” (emphasis added).
Yet, Montgomery has failed to provide any documentary evidence that would support his belief that
§ 570.1114 has been fully satisfied. Although ¶ 41 of his complaint makes reference to “an
agreement” to perform emergency repairs to the West Bloomfield Property, he neither pleads nor
proves that the “agreement” was in writing. Moreover, Montgomery’s opposition papers offer no
substantive response to this argument. Inasmuch as the record is devoid of evidence that Montgomery
has complied with this aspect of the Michigan Construction Lien Act, the request by the U.S. Bank
to dismiss Montgomery’s claims against the West Bloomfield property on this basis must be granted.
7
U.S. Bank also argues that Montgomery failed to provide evidence that his claim of a
lien included proof that he served Rudolph and/or Lowery with a “notice of furnishing,” as
required by §§ 570.1111(4) and 570.1109. However, such a requirement is not applicable where,
as it appears here, the person who performs the improvements to the property does so pursuant to
an agreement directly with the owners.
8
The Court reaches a similar conclusion in light of Montgomery’s failure to satisfy the
requirement in § 570.1114(b) which specifies that his written agreement with the owners of the West
Bloomfield property must contain a provision which (1) specifies that the contractor “is licensed” and
(2) actually identifies his relevant license number. Indeed, Mich. Comp. Laws § 339.2412(1) prohibits
a person, such as Montgomery, from obtaining relief unless there is evidence that he was licensed as
a contractor during his performance of the contract which gave rise to the claimed construction lien.8
Although Montgomery claims that this statutory provision does not apply to “laborers,” he provides
no case law or any other authority to support his interpretation of the statute. Inasmuch as Montgomery
has not established the existence of a valid construction lien to cover his alleged work endeavors, this
effort by him to recoup nearly $100,000 through a foreclosure on the West Bloomfield property must
be rejected. To grant relief to him under these circumstances would be inconsistent with Michigan law.
For all of these reasons, the motion by the U.S. Bank to dismiss Montgomery’s lawsuit relating to the
West Bloomfield property is granted in its entirety.
III.
Next, the Court has been presented with a request by three of the Defendants (Evergreen
Woods, Kramer-Triad, and Michael Kellum to dismiss this lawsuit on two different grounds. First,
they argue that a dismissal is appropriate in light of Montgomery’s failure to engage in any discovery
8
Section 339.2412(1) provides that “[a] person or qualifying officer for a corporation or
member of a residential builder or residential maintenance and alteration contractor shall not
bring or maintain an action in a court of this state for the collection of compensation for the
performance of an act or contract for which a license is required by this article without alleging
and proving that the person was licensed under this article during the performance of the act or
contract.”
9
over an eight-month period. More specifically, they contend that Montgomery has neglected and/or
refused to answer their interrogatories, file any initial disclosures, or appear for a scheduled deposition.
As to the deposition, they note that Montgomery appeared at the building where the deposition was
scheduled to be conducted, but refused to submit himself to a metal detector, despite having a violent
criminal history and applying for multiple permits to carry a concealed weapon. According to the
Defendants, Montgomery has not appeared for a deposition since that time.
Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure provides that if a party fails to obey
a discovery order, the court may “issue further just orders [which] may include: . . . dismissing the
action or proceeding in whole or in part . . . .” In fashioning an appropriate remedy for such a violation,
the Court is encouraged to consider the following factors, none of which are dispositive: whether (1)
the failure is due to willfulness, bad faith, or fault, (2) the opponent sustained any prejudice, (3) the
party was warned that failure to cooperate could lead to the imposition of a sanction, and (4) less
drastic sanctions were first considered or imposed.
Regional Refuse Systems, Inc. v. Inland
Reclamation Co., 842 F.2d 150, 154-55 (6th Cir. 1988) (superseded by statute on other grounds).
After applying the Regional Refuse factors here, the Court concludes that a dismissal of the
complaint is not warranted. Although the Court does not condone any attempt by Montgomery to avoid
his discovery obligations, the Defendants have not shown that he has committed the kind of dilatory,
evasive, or non-responsive conduct that would justify the imposition of the most extreme sanction (i.e.,
dismissal). The Defendants have acknowledged that Montgomery did appear in person for a deposition
on one occasion but refused to comply with a building security measure when he was asked to proceed
through a metal detector. Although this behavior strikes the Court as puzzling, it does not provide a
basis for dismissing the entire lawsuit, particularly where the only other alleged omissions are in failing
10
to answer interrogatories or file initial disclosures. Additionally, the Defendants have not persuaded
the Court that Montgomery has necessarily acted with wilfulness or bad faith, or explained how, if at
all, they have been prejudiced by his alleged failings to date. While the Court can imagine that
Montgomery’s failures have led to the expenditure of unnecessary time, money, or resources, it is the
Defendants’ burden to support their request for sanctions with evidence.
Finally and despite their dissatisfaction with Montgomery’s conduct, the Defendants have not
proffered any motion that is designed to compel compliance for failing to satisfy his minimum
discovery obligations under Fed. R. Civ. P. 37(a). In light of the Defendants’ inability to satisfy the
requirements of Fed. R. Civ. P. 37(b) and Regional Refuse, supra, their request for a dismissal of
Montgomery’s entire lawsuit on this basis must be, and is denied. Notwithstanding, Montgomery is
advised that any continued failure by him to engage in a good faith discovery effort may result in the
imposition of sanctions, the most extreme of which may include a dismissal of his lawsuit with
prejudice.
The Defendants have argued in the alternative that this case must be dismissed under Fed. R.
Civ. P. 12(b)(6) because the complaint does not allege any wrongdoing on their part. On this point, they
note that (1) Evergreen Woods was merely the condominium community where the events about which
Montgomery complains occurred, (2) Michael Kellum is simply a board member of Evergreen Woods,
and (3) Kramer-Triad merely manages the condominium complex. Further, they collectively claim
that the extent of their involvement was to comply with a court order which authorized the local police
to enter the facility where Montgomery was a tenant in order to execute the foreclosure. According
to them, neither Kellum nor any of the employees of the other two Defendants ever stepped foot into
Montgomery’ condominium. Furthermore, it is their position that this lawsuit should be dismissed
11
because the remaining disputed issues in this litigation exist between Montgomery, the mortgage
lender, and the local police.
Fed R. Civ. P. 8(a)(2) requires a complaint to provide “a short and plain statement of the claim
showing that the pleader is entitled to relief [in order to] give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this
pleading standard does not mandate “detailed” factual allegations, it does require more than the bare
assertion of legal conclusions. See Twombly, 550 U.S. at 555. Therefore, a plaintiff must offer more
than “an unadorned, the defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009).
Generally, when considering a motion to dismiss, the Court must construe the complaint in a
light that is most favorable to the plaintiff, accept his factual allegations as being true, and draw all
reasonable factual inferences in the plaintiff's favor. Tipton v. Corr. Med. Services, Inc., No. 08-421,
2009 WL 2135226 (W.D. Mich. July 15, 2009). However, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Moreover, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Claims are capable
of surviving a Rule 12(b)(6) motion only if the “[f]actual allegations [are] enough to raise a right to
relief above the speculative level . . . on the assumption that all [of] the allegations in the complaint are
true . . . .” Twombly, 550 U.S. at 555.
Here, construing the complaint in a light that is most favorable to Montgomery reveals the
following allegations: (1) Evergreen Woods has a nearly $2,000 financial interest in the Southfield
12
property arising from an arrearage in condominium assessments - an interest which is allegedly
subordinate to his construction lien, (2) Kramer-Triad and Kellum authorized his 1986 Pontiac Fiero
automobile to be towed from the Southfield property based on their belief that the vehicle was
improperly parked in the condominium lot, and (3) all three of these Defendants conspired with others
to forcibly enter the Southfield property without a court order and to evict him from the premises.
These factual allegations have led Montgomery to accuse these Defendants of (1) violating the
Michigan Penal Code, Mich. Comp. Laws § 750.110a by evicting him from the Southfield property
without due process of law, (2) being jointly liable for more than five-million dollars in damages for
their allegedly unlawful interference with his interest in the Southfield property, and (3) engaging in
unlawful, unfair, unconscionable, or deceptive practices in the conduct of trade.
When judging the complaint based on the standards articulated in Iqbal and Twombly, supra,
the Court finds that the request for dismissal by these Defendants is justifiable. Even when accepting
all of Montgomery’s allegations as true, the complaint does not identify a violation of any applicable
law. For instance, in his attempt to hold the Defendants responsible for contravening §750.110a of
the Michigan Penal Code, Montgomery provides no factual allegations which would plausibly suggest
that the Defendants broke and entered his dwelling and committed a felony or a misdemeanor while
inside (or intended to do so), as required by § 750.110a. More importantly, even if he had succeeded
in making such a showing, Montgomery has proffered no legal authority to establish that a violation
of this criminal statute gives rise to a private right of action or other form of civil liability between
private litigants.
Although Montgomery has accused these Defendants of unfair, unconscionable or deceptive
trade practices, in violation of Mich. Comp. Laws §§ 445.901-445.922 (also known as the Michigan
13
Consumer Protection Act (“MCPA”)), a cursory reading of this statute reveals that it has no
applicability here. The MCPA is designed to prohibit businesses from engaging in unsavory practices
with regard to goods and services that are offered to Michigan consumers. See generally, Mich. Comp.
Laws § 445.903(1) (declaring that “[u]nfair, unconscionable, or deceptive methods, acts, or practices
in the conduct of trade or commerce are unlawful.”); Mich. Comp. Laws § 445.902(g) (defining “trade
or commerce,” as “the conduct of a business providing goods, property, or service primarily for
personal, family, or household purposes and includes the advertising, solicitation, offering for sale or
rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed,
or any other article, or a business opportunity.”). Here, Montgomery has failed to respond to the
Defendants’ allegations, thus giving the Court no guidance as to his theory of liability. But even
assuming he can proffer a reasonable argument as to why his dealings with the Defendants fall within
the ambit of the MCPA, Montgomery’s complaint has neither identified the provisions of § 445.903
that he believes have been breached nor provided a plausible set of allegations from which the Court
could assess his entitlement to relief. Because his complaint has failed to state a claim upon which
relief can be granted against Evergreen Woods, Kramer-Triad, and Michael J. Kellum, their joint
request to dismiss the lawsuit against them must be, and is, granted.
In light of this resolution, the Court declines to resolve Montgomery’s two near-frivolous
motions which relate to Evergreen Woods. In those pleadings, Montgomery seeks the entry of a
summary judgment and the imposition of sanctions against this Defendant for what he characterizes
as its egregious conduct in litigating this case under a false name; namely, i.e. Evergreen Woods
Condominium Association – when its true legal name is Evergreen Woods Association. Although the
Court seriously doubts the substantive propriety of Montgomery’s request for relief, these motions will
14
be denied for reasons of mootness since Evergreen Woods has been dismissed from the litigation, as
indicated supra.
IV.
Finally, Montgomery has asked the Court for permission to amend the complaint in order to
supplement his original claims with alleged violations of federal law, and to add new Defendants,
including former White House Chief of Staff Rahm Emanuel; Deputy Chief of Staff to President
Barack H. Obama, Jim Messina, as well as several executive officers with the law firm of Trott &
Trott; and other entities who may or may not have any reasonable connection to this lawsuit.
Under Fed. R. Civ. P. 15(a)(2), a court may “freely give leave [to amend a pleading] when
justice so requires.” This rule reaffirms the principle that cases should be tried on their merits “rather
than [on] the technicalities of pleadings.” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986)
(quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982)). Nevertheless, a court is entitled to
consider various factors that weigh in favor of denying a leave to amend, such as undue delay, bad
faith, or prejudice to the opposing party. Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458 (6th Cir.
2001). If a proposed amendment would not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
a court may also disallow the modification on the ground that it would be futile. Thiokol Corp. v. Dept.
of Treasury, 987 F.2d 376, 382 (6th Cir.1993).
After carefully examining the record, the Court concludes that Montgomery’s request to amend
his complaint must be denied. It appears that Montgomery has brought this proposed amendment in
bad faith, inasmuch as the newly-pled claims have little coherence or bearing on the essential subjectmatter of this litigation. For instance, the proposed amended complaint accuses several new Trott &
15
Trott personnel (namely David Trott, Kathleen Hommel Trott, Ellen L. Coon, and Marcy J. Ford) of
committing professional malpractice against him, when it is clear from the record that these Defendants
never maintained any attorney-client relationship with Montgomery or owed him a legal duty. See e.g.,
Mitchell v. Dougherty, 249 Mich. App 668, 676 (2002) (noting that the first step in establishing a legal
malpractice claim is to prove the existence of an attorney-client relationship).9 The complaint also
contains incomprehensible language such as the following: “[Each of the Defendants] have all engaged
in what the United States Whitehouse [sic] has called ‘Normal Political leadership . . . . The leaders of
parties have long had an interest in ensuring that supporters didn’t run against each other in contested
primaries.” (Proposed Amended Complaint ¶ 116). Moreover, Montgomery accuses Rahm Emmanuel,
Jim Messina, and the Trott & Trott executives of violating 42 U.S.C. § 1983, 18 U.S.C. §§ 594,10 59511
and a host of other inapplicable statues of conspiring with the original Defendants to violate his civil
rights and force him out of the Southfield property. However, his complaint neither establishes the
details of the alleged conspiracy nor identifies the manner in which these Defendants were personally
involved therewith. Furthermore, Montgomery has filed no substantive pleading in connection with
his motion, and has done nothing to explain why these amendments would not be futile.
Finally, as to the only remotely valid cause of action ( i.e. the alleged violations of the Federal
9
Even if such an attorney-client relationship did exist, Montgomery’s proposed amended
complaint does nothing to explain how a fiduciary duty was breached.
10
This statute precludes the intimidation of voters in federal elections, by providing that:
“(w)hoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any
other person for the purpose of interfering with the right of such other person to vote or to vote
as he may choose. . . shall be fined under this title or imprisoned not more than one year, or
both.”
11
This provision prohibits administrative employees from interfering with federal
nominations and elections.
16
Protecting Tenants at Foreclosure Act of 2009), Montgomery’s proposed amended complaint falls short
because no facts have been pled which plausibly suggest that he is a bona fide tenant with a legally
valid lease agreement. See Federal Protecting Tenants at Foreclosure Act of 2009 (Pub. L. 111-22, title
VII, § 702[a], 123 U.S. Stat. 1660-1661) (noting that a lease or tenancy shall be considered bona fide
“only if (1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the
tenant; (2) the lease or tenancy was the result of an arms-length transaction; and (3) the lease or tenancy
requires the receipt of rent that is not substantially less than fair market rent for the property or the
unit's rent is reduced or subsidized due to a Federal, State, or local subsidy.”)).
In sum, because the proposed amended complaint was brought in bad faith and cannot withstand
a challenge on the basis of futility, Montgomery’s request to amend must be, and is, denied.
V.
Therefore, for the reasons that have been stated above, (1) Montgomery’s motions for sanctions,
the entry of a summary judgment, and for an amendment of the complaint are denied; (2) U.S. Bank’s
motions to intervene and to dismiss are granted; (3) Motions to dismiss by Evergreen Woods, KramerTriad, and Michael J. Kellum are granted; and (4) Freddie Mac’s motion to extend time is denied.
IT IS SO ORDERED.
Date: October 27, 2011
s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Court Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on October 27, 2011.
17
s/ Kay Doaks
Case Manager
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