Adams et al v. US Bank, NA et al
Filing
3
ORDER: For the reasons provided in the attached Memorandum & Order, defendants MERS and U.S. Bank's 34 Motion to Sever and Transfer Venue to the United States District Court for the Eastern District of Michigan is granted. Defendants' [3 5] Motion to Change Venue is granted. All purported pro se plaintiffs except for Grace Adams were never properly joined, and the Clerk of Court is respectfully requested to enter judgment dismissing without prejudice the claims of all purported pro se plaintiffs except Grace Adams. In light of the severance and transfer of Grace Adams's claims and dismissal without prejudice of all claims by the purported pro se plaintiffs except Grace Adams, the following motions are rendered moot, and t he Clerk of Court is respectfully requested to terminate these motions: 21 , 31 , 33 , 50 and 99 . Purported plaintiff Clarence Matthews's 60 Motion for Leave to Amend is denied. Purported plaintiff Arzel L. Foster's "Amended Complaint" filed on 12/12/12 is stricken. Defendant Wells Fargo's 25 Motion to Strike is granted. Defendants Wells Fargo's 42 Motion to Dismiss and Ally Bank's 38 Motion to Dismiss are granted without prejudice as to all purported plaintiffs except Adams, and defendants' 42 and 38 motions as to Adams are reserved for the transferee court. The Clerk of Court is respectfully requested to transfer plaintiff Adams's action to the United States District Cou rt for the Eastern District of Michigan, 28 U.S.C. §§ 1404(a), 1406(a), enter judgment dismissing without prejudice the claims of the other purported plaintiffs, and close this case. Defendants MERS and U.S. Bank are directed to serve a ll purported plaintiffs on the docket with a copy of this Memorandum & Order and file declaration of service within two days of the date of this Memorandum & Order. Purported plaintiff Clarence Matthews is ordered to serve a copy of this Memorandum and Order on the plaintiffs he proposed to add in his motion (see ECF No. 60), and to file a declaration of service within ten days of the date of this Memorandum & Order. Purported plaintiff Arzel L. Foster is ordered to serve a copy of this Memoran dum and Order on the plaintiffs he sought to represent in his Amended Complaint (see ECF No. 77), and to file a declaration of service within ten days of the date of this Memorandum & Order. Ordered by Judge Kiyo A. Matsumoto on 9/27/2013. (Tsai, Denise) [Transferred from nyed on 9/30/2013.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
GRACE ADAMS; JOHN CROCKETT;
HUMZA AL-HAFEEZ; RONALD L.
KERKSTRA; PATRICIA CRENSHAW;
MATTHEW CRUISE; BARBARA CRUISE;
CATHRYN LAFAYETTE; CAROLE LINE
KOUMBA; MARY MUHAMMAD;
COSMAS MARTIAL MEDOUOVONO;
GREGORY L. LAMBERT; MYRON BANKS;
EMMA BRATHWAITE; CARLOTTA ANEIRO;
CLARENCE MATTHEWS; MUSLIM
MUHAMMAD; CARLA BANKS; ARZEL L.
FOSTER III,
MEMORANDUM AND ORDER
12 CV 4640 (KAM) (LB)
Plaintiffs,
-againstUS BANK, NA, et al.,
Defendants.
---------------------------------------------------------------x
MATSUMOTO, United States District Judge:
On July 27, 2012, plaintiff Grace Adams (“plaintiff”
or “Adams”) filed a complaint in the Supreme Court of the State
of New York, Kings County.
(Index No. 502131/2012.)
Adams then
filed a first amended complaint on August 7, 2012, and a second
amended complaint on August 29, 2012, in state court.
On
September 17, 2012, defendants Bank of America, N.A. (“Bank of
America”), and Mortgage Electronic Registration Systems, Inc.
(“MERS”), removed the instant action from the Supreme Court of
the State of New York, Kings County, based on federal question
1
jurisdiction.
(See ECF No. 1, Notice of Removal dated 9/17/12.)
Presently before the Court are two motions to transfer venue.
The first motion, filed by defendants MERS and U.S. Bank, N.A.
(“U.S. Bank”), seeks to sever plaintiff Grace Adams’s claims and
transfer her claims to the United States District Court for the
Eastern District of Michigan (“Eastern District of Michigan”)
or, in the alternative, to dismiss the action pursuant to
Federal Rule of Civil Procedure 12(b)(6). (See ECF No. 34,
Notice of Motion to Sever and to Transfer Venue by U.S. Bank and
MERS dated 10/5/12.)
The second motion, filed by defendants
Bank of America, CitiMortgage, Inc. (“CitiMortgage”), and
Federal National Mortgage Association (“Fannie Mae”), also
requests that the court transfer Adams’s action to the Eastern
District of Michigan.
(See ECF No. 36, Memorandum In Support of
Motion to Transfer by Bank of America dated 10/5/12.)
In addition, on October 18, 2012, defendant Wells
Fargo, N.A. (“Wells Fargo”), filed a motion to strike the third
amended complaint submitted by Adams.
(See ECF No. 25, Mot. to
Strike Am. Comp. by Wells Fargo dated 10/18/12.)
On November 5,
2012, defendant Wells Fargo filed a motion to dismiss the action
for failure to state a claim.
(See ECF No. 42, Mot. to Dismiss
by Wells Fargo filed 11/5/12.)
On November 5, 2012, defendant
Ally Bank filed a motion to dismiss the complaint.
2
(See ECF No.
38, Mot. to Dismiss by Ally Bank filed 11/5/12.)
Adams and the
purported plaintiffs have had the opportunity to submit any
oppositions to the motions.
After considering the submissions and for the reasons
set forth below, the court grants defendants’ motions to sever
and transfer the action as to the claims of Grace Adams to the
Eastern District of Michigan, and dismisses without prejudice
the action as to all purported plaintiffs except for Grace
Adams.
BACKGROUND
I.
Facts
Pro se plaintiff Grace Adams alleges on behalf of
herself and other purported plaintiffs, that defendants, various
banking and lending institutions, savings corporations, and
mortgage service providers, fraudulently induced them into
entering into loans and mortgages and illegally foreclosed on
their real property.
Adams purports to represent herself and
other pro se plaintiffs. However, as set forth below, she may
not represent other pro se parties.
Adams has filed the
majority of the documents in this action and signed the
documents as “document preparer.”
(See ECF No. 1, Ex. 1,
Complaint, First and Second Am. Compls. filed 8/7/12 and
8/29/12; see also ECF No. 24, Third Am. Compl. filed 10/15/12.)
3
Adams is the only person who has signed the original complaint
and the first and second amended complaints, in which she
purports to represent eight potential pro se plaintiffs. 2
(See
ECF No. 1, Ex. 1, Complaint, First and Second Am. Compls.)
Moreover, Adams is the only person who signed the third amended
complaint, filed on October 15, 2012 after removal of the action
to federal court, without consent of defendants and without
leave of court, in which she purports to represent eighteen
potential pro se plaintiffs.
II.
(See ECF No. 24, Third Am. Compl.) 3
Grace Adams
2
The eight purported plaintiffs in the first and second amended
complaints are: John Crockett, Humza Al-Hafeez, Ronald L. Kerkstra,
Patricia Crenshaw, Matthew Cruise, Barbara Cruise, Cathryn Lafayette,
and Marilyn Judah. (See ECF No. 1, Ex. 1, Complaint, First and Second
Am. Compls.)
3
The eighteen purported plaintiffs in the third amended complaint
are: John Crockett, Humza Al-Hafeez, Ronald L. Kerkstra, Patricia
Crenshaw, Matthew Cruise, Barbara Cruise, Cathryn Lafayette, Marilyn
Judah, Gregory L. Lambert, Myron Banks, Carla Banks, Emma Brathwaite,
Carlotta Aneiro, Clarence Matthews, Mary Muhammad, Muslim Muhammad,
Carole Line Koumba, Gregory Lambert, and Cosmos Martial Medouovono.
(See ECF No. 24, Third Am. Compl.)
In addition, purported pro se plaintiff Clarence Matthews filed a
motion to amend the complaint to add even more plaintiffs,
specifically, Joel Marshall, Fortunata Koellmer, Robert Koellner, and
Boonnuang P. Kalof. (See ECF No. 60, Mot. for Leave to Amend
Complaint to Add Plaintiffs by Matthews filed 11/5/12.) The court
denies Matthews’s motion to amend for the reasons set forth herein.
Finally, purported plaintiff Arzel L. Foster III, filing as a
“document preparer,” filed an amended complaint, without leave from
the court or consent of defendants, naming additional purported pro se
plaintiffs Delores Simpson, Edward Simpson, the Estate of Clord Davis,
Nader Alborno and Sammy Alborno. (See ECF No. 77, Amended Complaint
by Foster filed 12/18/12.) The court strikes the unauthorized pro se
amended complaint and dismisses without prejudice the claims of the
purported plaintiffs named in the Foster amended complaint, for the
reasons set forth herein.
4
The gravamen of Adams’s complaint and amended
complaints is that defendants illegally foreclosed on her
property, which is located in Rochester Hills, Michigan. (See
ECF No. 1, Ex. 1, Am. Compl. filed 8/29/12.)
In brief, in 2006,
plaintiff obtained a mortgage from Wilmington Finance, which was
serviced by U.S. Bank.
See Adams v. Wilmington Fin., No. 07-
15494, 2008 WL 2998660 (E.D. Mich. Aug. 1, 2008).
When
plaintiff defaulted on the mortgage loan in 2008, U.S. Bank
initiated foreclosure proceedings.
Since that time, plaintiff Adams has made numerous
challenges to the Michigan foreclosure and eviction proceedings
through a series of lawsuits in both the United States District
Court for the Eastern District of Michigan and the United States
Bankruptcy Court in the same district. 4
See Adams v. Wilmington
Fin./AIG, No. 12-cv-10308, 2012 WL 2905490, at *1 n.3 (E.D.
Mich. May 29, 2012) (collecting cases).
4
Plaintiff Adams’s
See Adams v. Wilmington Fin., et al., No. 07–15494 (E.D. Mich.
Dec. 27, 2007) (“Adams I”); Adams v. U.S. Bank, No. 10–10567, 2010 WL
2670702 (E.D. Mich. July 1, 2010) (“Adams II”); Adams v. U.S. Bank,
No. 10–5541 (Bankr. E.D. Mich. June 16, 2010), on appeal No. 10–12481
(E.D. Mich. Mar. 18, 2011) (“Adams III”); Adams v. Mortgage Elec.
Registration Sys., No. 11–14791 (E.D. Mich. Jan. 12, 2012) (“Adams
IV”). The bankruptcy actions are In re Adams, No. 08–60296 (Bankr.
E.D. Mich. Aug. 21, 2008); In re Adams, No. 09–65692 (Bankr. E.D.
Mich. Aug. 19, 2009; In re Adams, No. 10–44892 (Bankr. E.D. Mich. Feb.
19, 2010); In re Adams, No. 10–60057 (Bankr. E.D. Mich. June 21,
2010); In re Adams, No. 11–45799 (Bankr. E.D. Mich. Mar. 4, 2011).
5
previous actions have all been dismissed for failure to state a
claim upon which relief may be granted, or for failure to comply
with court orders.
Id.
By order dated July 16, 2012, the United States
District Court for the Eastern District of Michigan enjoined
Adams from commencing any future actions in federal district
court related to her foreclosure without first obtaining leave
of court.
See Adams v. Springleaf Fin. Serv., et al., No. 12-
cv-10308, 2012 WL 2905279, at *10 (E.D. Mich. July 16, 2012).
The order provides in relevant part:
Plaintiff Grace Ellis Adams is ENJOINED from
filing, in federal district court, any civil
lawsuit alleging or asserting factual or legal
claims based upon, or arising out of, the
transactions or conduct at issue in this action,
or in any of her prior actions involving the same
subject matter, WITHOUT FIRST APPLYING FOR AND
RECEIVING A COURT ORDER AUTHORIZING THE FILING OF
SUCH LAWSUIT. ANY SUCH APPLICATION BY ADAMS
SHOULD INCLUDE A COPY OF THIS OPINION AND ORDER.
Id. (emphasis in original).
Moreover, by order dated April 25, 2013, the United
States District Court for the Eastern District of Michigan
permanently enjoined Adams from commencing any state court
actions against defendants AIG and/or MERS seeking to relitigate claims on which defendants prevailed.
6
See Adams v.
Springleaf, et al., No. 12-10308, 2013 WL 1774724, at *2 (E.D.
Mich. Apr. 25, 2013).
The order provides in relevant part:
1. Plaintiff Grace Adams is permanently enjoined
from commencing against Defendant AIG and/or the
MERS Defendants any future state court action
seeking to re-litigate claims and/or causes of
action on which those Defendants have already
prevailed in this Court without attaching to her
first filing in any such action a copy of (i)
this Opinion and Order; (ii) the February 13,
2013 R & R (Dkt.161), and this Court's July 16,
2012 Opinion and Order (Dkt.145).
2. The Court warns Plaintiff Grace Adams that if
she violates the Court's injunctions she could be
the subject of further sanctions or contempt of
court, such as monetary fines and imprisonment.
The Court directs Defendants to bring Plaintiff's
violations of the Court's injunctions to the
Court's attention. Furthermore, the Court
reiterates its warning — made in its March 6,
2013 Order — that Plaintiff must desist from
filing in this action improper papers including,
without limitation, any new complaints. If
Plaintiff resumes the filing of improper papers,
such as documents purporting to amend her
complaint or assert claims against Defendants in
this case, the Court will not hesitate to impose
sanctions on its own motion, such as monetary
fines and a filing bar.
Id. (emphasis in original).
III. Procedural History
The procedural history of this action is recounted in
pertinent part. On July 27, 2012, Adams commenced this action in
the Supreme Court of the State of New York, Kings County by the
filing of a “Mass Joinder” complaint.
7
On August 7, 2012,
plaintiff filed an amended complaint, and on August 29, 2012,
she filed a second amended complaint.
(See Docket 12-CV-4640,
ECF No. 1, Notice of Removal dated September 17, 2012, at 1-2, ¶
1.)
On September 17, 2012, defendants Bank of America and MERS
removed the instant action from the Supreme Court of the State
of New York, Kings County, based on federal-question
jurisdiction.
(See ECF No. 1, Notice of Removal.)
On the same
day, defendants Bank of America and Fannie Mae filed a separate
notice of removal, on the grounds of diversity.
(See ECF No. 4,
Letter Regarding Duplicate Actions filed 9/24/12.)
On September
27, 2012, the court consolidated the two actions under the lead
number and administratively closed 12-CV-4646.
Adams and other purported plaintiffs have filed
numerous documents responding to defendants’ pleadings and
motions as well as seeking various other forms of relief.
(See, e.g., ECF No. 21, Motion to Remand “back to the Supreme or
Federal Court” by purported plaintiff Cathryn Lafayette
(“Lafayette”) filed 10/17/12; ECF No. 22, Answer to Defendants’
Motion to Dismiss by Lafayette filed 10/17/12; ECF No. 23,
“Answer to Defendants’ Declaratory and Relief and Damages
Racketeering” by Lafayette filed 10/17/12; ECF No. 30,
“Reply/Answer in Opposition to Defendant’s Motion to Dismiss or
Remove this Case to Michigan” by purported plaintiff Ronald
8
Kerkstra (“Kerkstra”) filed 10/24/12; ECF No. 31, Motion for
Summary Judgment by Lafayette filed 10/26/12; ECF No. 32,
“Motion to Deny Defendants’ Request to Dismiss” by purported
plaintiff Patricia Crenshaw (“Crenshaw”) filed 10/26/12; ECF No.
33, “Plaintiff’s Answer and Motion to Deny Defendant’s Request
to Transfer Case Back to Michigan” by Crenshaw filed 10/26/12;
ECF No. 50, Amended Motion for Summary Judgment by Lafayette
filed 11/2/12; ECF No. 54, “Plaintiff’s Motion to Deny All of
the Defendants’ Motions to Dismiss and [Motion] for Summary
Judgment” by Adams filed 11/2/12; ECF No. 60, “Motion For Leave
To Amend Complaint And To Add Plaintiffs” by purported plaintiff
Clarence Matthews (“Matthews”) filed 11/5/12; ECF No. 63,
“Motion to Dismiss Defendants’ Foreclosure Action” by Adams
filed 11/5/12; ECF No. 66, “Motion for Discovery, to Amend
Complaint, Dismiss Defendant’s Motion to Dismiss” by Adams filed
11/13/12; ECF No. 67, “Motion to Dismiss Defendants’ Foreclosure
Action” by Adams filed 11/13/12; ECF No. 77, Amended Complaint
by purported plaintiff Arzel L. Foster III (“Foster”) filed
12/18/12.)
DISCUSSION
I.
Severance
Defendants MERS and U.S. Bank move to sever Adams’s
claims and transfer her claims to the Eastern District of
9
Michigan.
(See ECF No. 34, Notice of Mot. to Sever and to
Transfer Venue by U.S. Bank and MERS dated 10/5/12.)
In support
of their motion, defendants argue that all other purported
plaintiffs’ claims do not arise out of the same transaction or
occurrence nor involve common questions of law or fact.
Federal Rule of Civil Procedure 20(a) permits the
joinder of multiple plaintiffs if: “(A) they assert any right to
relief jointly, severally, or in the alternative with respect,
to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and (B) any question of law or
fact common to all plaintiffs will arise in the action.”
R. Civ. P. 20(a)(1).
Fed.
If a court concludes that plaintiffs have
been improperly joined under Rule 20, it has broad discretion
under Rule 21 to sever parties from the action.
See Fed. R.
Civ. P. 21 (“On motion or on its own, the court may at any time,
on just terms, add or drop a party.
The court may also sever
any claim against a party.”); New York v. Hendrickson Bros.,
Inc., 840 F.2d 1065, 1082 (2d Cir. 1988) (“The decision whether
to grant a severance motion is committed to the sound discretion
of the trial court.”); In re Facebook, Inc., No. 12–2389, 2013
WL 4399215, at *2 (S.D.N.Y. Aug. 13, 2013) (same).
The courts weigh several factors in a severance
analysis including:
10
(1) whether the claims arise out of the same
transaction or occurrence; (2) whether the claims
present some common questions of law or fact; (3)
whether settlement of the claims or judicial economy
would be facilitated; (4) whether prejudice would be
avoided if severance were granted; and (5) whether
different witnesses and documentary proof are required
for the separate claims.
Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 580
(E.D.N.Y. 1999).
Here, it is clear that the purported plaintiffs are
improperly joined.
Plaintiffs’ claims involve different facts,
different properties located in different states, different
defendants, and different analyses of underlying state law
giving rise to their claims of fraud and unlawful foreclosures.
The first factor weighs in favor of severance because the claims
do not arise out of the same occurrence or transaction.
See
Abraham v. Am. Home Mortg. Servicing, Inc., No. 12 CV 4686, 2013
WL 2285205, at *4 (E.D.N.Y. May 23, 2013) (claims by plaintiffs
who engaged in separate loan transactions with the same lender
cannot be joined in a single action under federal permissive
joinder rule, since separate loans are not considered to be the
same “transaction or occurrence.”).
The second factor weighs in
favor of severance because plaintiffs’ claims do not present
common questions of law or fact.
See Kalie v. Bank of Am.
Corp., et al., No. 12 Civ. 9192, 2013 WL 4044951, at *4-5
11
(S.D.N.Y. Aug. 9, 2013) (plaintiffs, homeowners from 16
different states, alleging that they were injured as a result of
separate mortgage transactions failed to allege common questions
of law or fact).
In addition, the third factor weighs in favor of
severance because settlement of the claims and judicial economy
are likely to be facilitated if the claims are litigated
separately in the appropriate state or federal district court.
The fourth factor, whether prejudice would be avoided, weighs
neither in favor of severance or joinder.
The fifth factor,
whether different witnesses and documentary proof are required
for the separate claims, also weighs in favor of severance.
Accordingly, the court finds that the attempts by
Adams, Clarence Matthews, and Arzel L. Foster III to join other
pro se plaintiffs is improper.
The court grants the motion by
defendants MERS and U.S. Bank to sever Adams’s claims from the
claims of the other purported pro se plaintiffs.
Moreover, Adams, Matthews, and Foster, none of whom
appear to be attorneys, may not represent other plaintiffs.
See
Berrios v. N.Y. City Housing Auth., 564 F.3d 130, 132 (2d Cir.
2009) (“an individual generally has the right to proceed pro se
with respect to his own claims or claims against him personally,
[but 28 U.S.C. § 1654] does not permit unlicensed laymen to
12
represent anyone else other than themselves.”); Iannaccone v.
Law, 142 F.3d 553, 558 (2d Cir. 1998) (an unlicensed individual
“may not appear on another person's behalf in the other's
cause”); see also Fed. R. Civ. P. 11 (“Every pleading, written
motion, and other paper must be signed by ... a party personally
if the party is unrepresented.”).
Accordingly, the court
dismisses the claims of all purported plaintiffs, except Grace
Adams, without prejudice.
To the extent that any of the
dismissed purported plaintiffs wish to pursue claims on their
own behalf, the court notes that claims regarding their property
should generally be filed in the jurisdiction where the property
is located and the claim arose.
28 U.S.C. § 1391(b).
For the foregoing reasons, in addition to dismissing
the claims of all purported plaintiffs except for Adams, the
motion of purported pro se plaintiff Clarence Matthews to amend
the complaint to add additional pro se plaintiffs is denied (ECF
No. 60), and the unauthorized amended complaint filed by Arzel
L. Foster III, as “document preparer,” on behalf of additional
pro se plaintiffs is stricken (ECF No. 77).
II.
Improper Venue
“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
13
been brought.”
28 U.S.C. § 1404(a).
Section 1406(a) permits
transfer of a case pursued in the “wrong district.”
U.S.C. § 1406(a).
See 28
The purpose of Section 1404(a) “is to prevent
waste of time, energy and money and to protect litigants,
witnesses and the public against unnecessary inconvenience and
expense.”
Blechman v.
Ideal Health, Inc., 668 F. Supp. 2d 399,
403 (E.D.N.Y. 2009) (quoting Van Dusen v. Barrack, 376 U.S. 612,
616 (1964)); see also Easy Web Innovations, LLC v. Facebook,
Inc., 888 F. Supp. 2d 342, 347 (E.D.N.Y. 2012).
“[M]otions for
transfer lie within the broad discretion of the district court
and are determined upon notions of convenience and fairness on a
case-by-case basis.”
In re Cuyahoga Equip. Corp., 980 F.2d 110,
117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988)); D.H. Blair & Co., Inc. v. Gottdiener,
462 F.3d 95, 106-07 (2d Cir. 2006); Levy v. Welsh, No. 12 CV
2056, 2013 WL 1149152, at *3 (E.D.N.Y. Mar. 19, 2013).
A motion to transfer venue involves two inquiries: (1)
whether the action concerning the claims of Adams could have
been brought in the proposed transferee district pursuant to the
federal statute governing venue, 5 in this case the Eastern
5
Title 28 U.S.C. § 1391 provides, in pertinent part, that a civil
action may be brought in:
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located; (2) a judicial district in which a
14
District of Michigan, and (2) whether transfer is warranted for
the convenience of the parties and witnesses, in the interest of
justice.
See 28 U.S.C. § 1404(a); US Engine Prod., Inc. v. ISO
Group, Inc., No. 12-CV-4471, 2013 WL 4500785, at *5 (E.D.N.Y.
Aug. 20, 2013).
The factors to be considered in determining
whether to grant a motion to transfer venue include: “(1) the
plaintiff's choice of forum, (2) the convenience of witnesses,
(3) the location of relevant documents and relative ease of
access to sources of proof, (4) the convenience of parties, (5)
the locus of operative facts, (6) the availability of process to
compel the attendance of unwilling witnesses, and (7) the
relative means of the parties.”
N.Y. Marine & Gen. Ins. Co. v.
Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010); Phillips
v. Reed Grp., Ltd., No. 07 Civ. 3417, 2013 WL 3340293, at *5
(S.D.N.Y. July 1, 2013).
In addition, the “interest of justice component of the
Section 1404(a) analysis may be determinative in a particular
case.”
Cali v. East Coast Aviation Servs., Ltd., 178 F. Supp.
substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of the property
that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be
brought as provided in this section, any judicial district
in which any defendant is subject to the court’s personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
15
2d 276, 295 (E.D.N.Y. 2001) (internal quotation marks and
citation omitted).
Where another court has familiarity with the
parties and issues, it is in the interest of justice to transfer
the case to that tribunal in order to alleviate the concerns of
“wastefulness of time, energy and money that § 1404(a) was
designed to prevent.”
U.S. 19, 26 (1960).
Cont’l Grain Co. v. Barge FBL-585, 364
See also Wyndham Assocs. v. Bintiff, 398
F.2d 614, 620 (2d Cir. 1968) (transferee court’s “familiarity
with the legal problems . . . relating to the affairs [of the
plaintiff] constitutes a precious asset, increasing in value
with the passage of time, and . . . will undoubtedly lighten the
burden of litigants and courts alike”); Falconwood Fin. Corp. v.
Griffin, 838 F. Supp. 836, 842 (S.D.N.Y. 1993) (“‘Interest of
justice’ encompasses the private and public economy of avoiding
multiple cases on the same issues.”).
The party seeking to transfer a case carries the
burden of making out a strong case for transfer, and the courts
evaluate such motions under a clear and convincing evidence
standard to determine whether to exercise discretion to grant a
motion to transfer.
N. Y. Marine & Gen. Ins. Co., 599 F.3d at
113–14.
Here, given the large litigation history of Grace
Adams in the Eastern District of Michigan, the above factors
16
dictate that the Adams’s claims should be transferred to the
Eastern District of Michigan.
First, this action should have
been brought in the Eastern District of Michigan, as the
property that is the subject of this litigation is located in
Michigan, a substantial part of the events or omissions giving
rise to this claim occurred in Michigan, and documents and
witnesses relevant to plaintiff’s claims are most likely to be
located in Michigan.
In addition, given the litigation history
between the parties which has spanned several years, as well as
the orders enjoining plaintiff from further filing without leave
of court, the Eastern District of Michigan must be given the
opportunity to determine whether this action may proceed.
In
particular, plaintiff Adams’s apparent attempt to circumvent the
injunctive order of the district court in the Eastern District
of Michigan by filing her action in New York Supreme Court
should be addressed by the district court in the Eastern
District of Michigan.
Accordingly, in the interest of justice
Grace Adams’s action is transferred to the United States
District Court for the Eastern District of Michigan.
§ 1404(a).
CONCLUSION
Accordingly, it is hereby ordered that:
17
28 U.S.C.
1.
All purported pro se plaintiffs, including John
Crockett, Humza AL-Hafeez, Ronald L. Kerkstra, Patricia
Crenshaw, Matthew Cruise, Barbara Cruise, Cathryn Lafayette,
Carole Line Koumba, Mary Muhammad, Cosmas Martial Medouovono,
Gregory L. Lambert, Myron Banks, Carla Banks, Emma Brathwaite,
Carlotta Aneiro, Clarence Matthews, Muslim Muhammad, Arzel L.
Foster III, Joel Marshall, Fortunata Koellmer, Robert Koellner,
Delores Simpson, Edward Simpson, the Estate of Clord Davis,
Nader Alborno, Sammy Alborno, and Boonnuang P. Kalof, were never
properly joined, and therefore their proposed claims are
dismissed from this action without prejudice.
The Clerk of
Court for the Eastern District of New York shall enter judgment
dismissing without prejudice the claims of all purported pro se
plaintiffs except Grace Adams.
2.
In light of the severance and transfer of Grace
Adams’s claims and the dismissal without prejudice of all claims
by the purported pro se plaintiffs except Grace Adams, the
following motions by Adams and purported plaintiffs are rendered
moot, and the Clerk of Court is respectfully requested to
terminate these motions.
•
ECF No. 21, “Motion to Remand Back to the Supreme
Court or Federal Court” by Cathryn Lafeyette, filed
October 17, 2012
18
•
ECF No. 31, “Motion for Summary Judgment” by Cathryn
Lafayette, filed October 26, 2012
•
ECF No. 33, “Plaintiff’s Answer and Motion to Deny
Defendant’s Request to Transfer Case Back to Michigan
and Plaintiff’s Request for Summary Judgment” by
Patricia Crenshaw, filed October 26, 2012
•
ECF No. 50, “Amended Motion for Summary Judgment” by
Cathryn Lafayette, filed November 2, 2012
•
ECF No. 60, “Motion for Leave to Amend Complaint And
To Add Plaintiffs” by Clarence Matthews, filed
November 5, 2012.
As with Grace Adams, Mr. Matthews,
a pro se plaintiff, cannot represent other plaintiffs,
and his motion is denied.
Mr. Matthews is ordered to
serve a copy of this Memorandum and Order on the
purported pro se plaintiffs he sought to add.
Mr.
Matthews must file a declaration of service with this
court within ten days of the date of this Memorandum
and Order.
•
ECF No. 99, Motion for Joinder by Grace Adams, filed
September 11, 2013
19
3.
The “Amended Complaint” filed by purported
plaintiff Arzel L. Foster on December 12, 2012 is stricken.
As
discussed supra, Mr. Foster, like Adams, is a non-attorney and
may not represent other plaintiffs.
Mr. Foster is ordered to
serve a copy of this Memorandum and Order of the pro se
plaintiffs he sought to add in his “Amended Complaint,” and to
file a declaration of service with this court within ten days of
the date of this Memorandum and Order.
4.
Defendants MERS and U.S. Bank’s motion to sever
and transfer Adams’s claims to the Eastern District of Michigan
is granted.
(See ECF No. 34, Notice of Mot. to Sever and to
Transfer Venue by U.S. Bank and MERS dated 10/5/12.)
5.
Defendants Bank of America, CitiMortgage, and
Fannie Mae’s motion to transfer Adams’s action to the Eastern
District of Michigan is granted.
(See ECF No. 35, Mot. to
Change Venue by Bank of America dated 10/5/12.)
6.
In light of the dismissal without prejudice of
all claims except those of Grace Adams, defendant Wells Fargo’s
motion to strike Adams’s third amended complaint seeking to add
parties and claims is granted.
(See ECF No. 25, Mot. to Strike
Am. Comp. filed 10/18/12.)
7.
Defendant Wells Fargo’s motion to dismiss the
complaint for failure to state a claim (ECF No. 42, Mot. to
20
Dismiss by Wells Fargo), and Ally Bank’s motion to dismiss the
complaint (ECF No. 38, Mot. to Dismiss by Ally Bank), are
granted without prejudice as to all purported plaintiffs except
Adams, and defendants’ motions as to Adams are reserved for the
transferee court.
The Clerk of Court is respectfully requested to
transfer plaintiff Grace Adams’s action to the United States
District Court for the Eastern District of Michigan, 28 U.S.C.
§§ 1404(a), 1406(a), enter judgment dismissing without prejudice
the claims of the other purported plaintiffs, and close this
case.
Defendants MERS and U.S. Bank are directed to serve
all purported plaintiffs on the docket with a copy of this
Memorandum and Order and file a declaration of service within
two days of the date of this Memorandum and Order. 6
Purported plaintiff Clarence Matthews is ordered to
serve a copy of this Memorandum and Order on the plaintiffs he
proposed to add in his motion (see ECF No. 60), and to file a
declaration of service within ten days of the date of this
Memorandum and Order.
Purported plaintiff Arzel L. Foster is ordered to
serve a copy of this Memorandum and Order on the plaintiffs he
6
On September 23, 2013, Adams provided addresses for the purported
plaintiffs for whom she has prepared and filed documents. (See ECF No. 100.)
21
sought to represent in his “Amended Complaint” (see ECF No. 77),
and to file a declaration of service within ten days of the date
of this Memorandum and Order.
SO ORDERED.
Dated: September 27, 2013
Brooklyn, New York
/s/
KIYO A. MATSUMOTO
United States District Judge
22
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