Braun v. Bank of America

Filing 28

ORDER denying 26 MOTION for Order/Judgment filed by David Steven Braun, Motions terminated: 26 MOTION for Order/Judgment filed by David Steven Braun., FINDINGS AND RECOMMENDATIONS re 27 MOTION for Order/Judgment filed by David Steven Braun. () Signed by Magistrate Judge Jeremiah C. Lynch on 8/27/2018. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
DAVID STEVEN BRAUN,
CV 17-72-BU-BMM-JCL
Plaintiff,
vs.

ORDER, and FINDINGS AND
RECOMMENDATION

BANK OF AMERICA,
Defendant.
On November 30, 2017, the undersigned United States Magistrate Judge
enter findings and a recommendation that this action be dismissed upon Defendant
Bank of America’s motion to dismiss and the doctrine of res judicata. Additionally,
the Court found Plaintiff David Braun’s independent allegations under the Fair
Debt Collection Practices Act and 42 U.S.C. § 1983 failed to state claims upon
which relief could be granted.
On January 4, 2018, the presiding District Judge adopted the referenced
recommendation and dismissed this action. The Court dismissed the case with
prejudice.
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On August 24 and 25, 2018, Braun filed two motions. First, he requests the
Court produce records of any ex-parte communications that may have occurred in
this case. But because no ex-parte communications occurred, IT IS HEREBY
ORDERED Braun’s motion is DENIED.
Second, Braun moves under authority of Fed. R. Civ. P. 60(b)(1) & (6) to
modify the dismissal in this action to be without prejudice. He asserts he opposed
the dismissal of his counterclaims in Braun I, the state court action referenced in
the November 30, 2017 Findings and Recommendation which formed the basis for
res judicata in this action. (See Doc. 16 at 6.) He argues those counterclaims should
not have been dismissed, and he always intended to re-file his counterclaims. Thus,
under Fed. R. Civ. P. 60(b)(1), he claims he was “surprised” to see his claims in
this action dismissed.
Braun’s arguments do not provide grounds for modifying the dismissal of
his claims in this case with prejudice. Rule 60(b)(1) allows the Court to relieve a
party from a final judgment for various reasons including “surprise.” But this
Court’s proper analysis and application of the doctrine of res judicata, and the law
under the Fair Debt Collection Practices Act and 42 U.S.C. § 1983 does not qualify
as an unfair “surprise” warranting a modification of the dismissal in this case. See
In re Braga, 272 F.R.D. 621, 625 (S.D. Florida 2011). Therefore, IT IS HEREBY
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RECOMMENDED that Braun’s motion to modify the dismissal of this action
should be DENIED.
DATED this 27th day of August, 2018.

Jeremiah C. Lynch
United States Magistrate Judge

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