Braun v. Bank of America

Filing 31

ORDER ADOPTING 28 Findings and Recommendations ; denying 27 Motion for Order/Judgment. Signed by Judge Brian Morris on 10/23/2018. (APP)

IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
DAVID STEVEN BRAUN,
CV-17-72-BU-BMM-JCL
Plaintiff,
v.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

BANK OF AMERICA,
Defendant.

United States Magistrate Judge Jeremiah C. Lynch entered findings and
recommendation on November 30, 2017, that this action be dismissed based on
Defendant Bank of America’s motion to dismiss and the doctrine of res judicata.
Judge Lynch determined that 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. This Court adopted the referenced
recommendation and dismissed the action with prejudice on January 4, 2018.
Plaintiff filed two actions subsequent to this Court’s dismissal. (Docs. 2627). Plaintiff first requested that the Court produce records of any ex-parte
communication that may have occurred in this case. Judge Lynch denied the
motion because no ex-parte communication had occurred. (Doc. 28). Plaintiff
then requested to modify the dismissal in this action to be without prejudice
pursuant to Fed. R. Civil. P. 60(b)(1) & (6). Judge Lynch issued an Order and
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Findings and Recommendation on this matter on August 27, 2018. (Doc. 28).
Judge Lynch recommends this Court deny Plaintiff’s motion to modify the
dismissal of the action. (Doc. 28 at 2-3).
No party filed objections to Judge Lynch’s Findings and Recommendation.
The Court has reviewed the Findings and Recommendation for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). The Court finds no error in Judge Lynch’s Findings and
Recommendation and adopts them in full.
Judge Lynch recommended that the Court deny Plaintiff Braun’s motion to
modify the dismissal of the action. Judge Lynch recommended that 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.” The 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, do not qualify as an unfair
“surprise” that would warrant a modification of the dismissal in this case. See In re
Braga, 272 F.R.D. 621, 625 (S.D. Florida 2011).

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ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Lynch’s Findings and
Recommendation (Doc. 28) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendant’s Motion to Modify the
Dismissal of this Action (Doc. 27) is DENIED.
DATED this 22nd day of October, 2018.

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