Sykes v. RBS Citizens, N.A., et al

Filing 61

ORDER: granting in part and denying in part as outlined 50 Motion for Joinder/Amend Complaint; Plaintiff to file amended complaint; terminating as moot 46 Defendants' Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Lewis B. Sykes, Jr.
v.

Civil No. 13-cv-334-JD
Opinion No. 2012 DNH 188

RBS Citizens, N.A., et al.
O R D E R
Lewis B. Sykes, Jr. brought suit in state court against RBS
Citizens, N.A.; CCO Mortgage Corporation; Federal National
Mortgage Association; Bank of America, N.A.; Bank of New York
Mellon; and Citibank, N.A., alleging claims that arose from the
defendants’ involvement in the circumstances surrounding the
foreclosure sale of his home in 2009.1
the case to this court.

Bank of America removed

Bank of America and Bank of New York

Mellon moved to dismiss Sykes’s claims for enhanced compensatory
damages against them.

In response, Sykes filed an objection to

the motion to dismiss but also filed a motion for leave to file
an amended complaint.

The defendants object to the motion for

leave to amend.

I.

Motion for Leave to Amend
Sykes has filed two previous amended complaints.

Because

the pertinent deadlines in the discovery plan had not passed when

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2014.

Default was entered as to Citibank, N.A. on January 6,

the motion was filed, the motion is governed by Federal Rule of
Civil Procedure 15(a).2
Rule 15(a)(2) provides that “[t]he court should freely give
leave [to amend] when justice so requires.”

Leave to amend

should be denied “when, inter alia, the request is characterized
by undue delay, bad faith, futility or the absence of due
diligence on the movant’s part.”

Manning v. Boston Med. Ctr.

Corp., 725 F.3d 34, 60-61 (1st Cir. 2013) (internal quotation
marks omitted).

A proposed amendment would be futile “if the

pined-for amendment does not plead enough to make out a plausible
claim for relief.”
745 F.3d 564,

HSBC Realty Credit Corp. (USA) v. O’Neill,

578 (1st Cir. 2014).

In his motion for leave to amend, Sykes asks that he be
allowed to add a defendant, Keller Williams Coastal Realty.
Although Sykes does not mention it in his motion for leave to
amend, he has added two new parts to the fact section of the
proposed amended complaint titled “Wrongful Constructive
Eviction” and “Landlord-Tenant Proceedings.”

Sykes has also

added claims for negligent supervision, respondeat superior,
fraud, intentional infliction of emotional distress, and trespass
to chattels.
The defendants object to allowing Sykes to amend his
complaint again.

CCO Mortgage Corporation and Federal National

2

The plaintiff’s deadline for amendment of pleadings was
July 1, 2014, and the plaintiff’s deadline for joinder of
additional parties was September 1, 2014.
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Mortgage Association, together the mortgage defendants, object on
the grounds of undue delay, bad faith, and lack of due diligence.
The mortgage defendants contend that the allegations Sykes adds
were known to him when he filed his original complaint and his
delay shows bad faith or at least a lack of due diligence.

The

mortgage defendants also point out that their motion to dismiss
based on the statute of limitations was denied because of the
need for discovery pertaining to Sykes’s mental competence and
argue that resolution of that issue has been delayed by Sykes’s
repeated amendments.

They ask that Sykes not be allowed to amend

his complaint which presents them with a “moving target.”
In support of his current motion to amend, Sykes merely
asserts that Bank of America enlisted the services of Keller
Williams Coastal Realty and that Keller Williams is responsible
for the actions of its agent, Robert Kelley.

Sykes alleged those

matters in the second amended complaint, without adding Keller
Williams as a party.

Sykes provides no explanation for waiting

until the end of June to seek leave to add Keller Williams as a
party defendant or for making any of the other changes that are
in the proposed amended complaint.
The motion for leave to amend the complaint, however, was
filed within the time allowed in the discovery plan and,
therefore, was not late.

The proposed amended complaint does not

make changes to the claims or allegations against the mortgage
defendants, and so it does not present a “moving target” as to

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them.

Further, no motion for summary judgment is currently

pending.

Despite Sykes’s piecemeal approach to pleading, the

record does not suggest bad faith or delay that would justify
denying an otherwise timely motion for leave to amend.
Bank of America and Bank of New York Mellon, together the
bank defendants, oppose the motion for leave to amend on the
ground that Sykes’s claimed remedy of enhanced compensatory
damages against them is futile.

Whether proposed amendments are

futile at this stage of a case is determined under the standard
for motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6).

HSBC Realty, 745 F.3d at 570; Juarez v.

Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir.
2013).

Under that standard, the proposed amendment should be

denied as futile if the allegations, taken as true and in the
light most favorable to the plaintiff, fail to state a plausible
claim for relief.

Feingold v. John Hancock Life Ins. Co., 753

F.3d 55, 59-60 (1st Cir. 2014).

Conclusory statements without

supporting factual allegations need not be credited.

A.G. ex

rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).
New Hampshire allows enhanced compensatory damages in only
exceptional circumstances, “[w]hen an act is wanton, malicious,
or oppressive.”

Stewart v. Bader, 154 N.H. 75, 87 (2006).

Intentional actions are not enough to support enhanced
compensatory damages.

Id.

The defendant must also act with ill

will, hatred, hostility, or evil motive.

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Id.

In the proposed amended complaint, Sykes seeks enhanced
compensatory damages for his civil conspiracy, conversion,
intentional infliction of emotional distress, and trespass to
chattels claims.

It appears that Sykes brings the civil

conspiracy, conversion, and trespass to chattels claims against
the bank defendants.

In support of his civil conspiracy claim,

Sykes alleges that New York Mellon Bank started a landlord tenant
action without providing personal notice to Sykes, caused the
court to issue a landlord tenant writ to New York Mellon Bank and
a writ of possession to Citibank, and concealed information about
Sykes’s legal rights.3

In support of his conversion claim, Sykes

alleges that New York Mellon Bank prevented him from retrieving
his personal property from the house after the foreclosure sale
and then destroyed that property.

The trespass to chattels claim

is somewhat disjointed but is based on water damage to Sykes’s
personal property that occurred after the foreclosure sale.
Those allegations do not suggest ill will, hatred, hostility, or
evil motive and do not support enhanced compensatory damages.
In his reply, Sykes points to other allegations to support
his claims for enhanced compensatory damages.

The referenced

allegations, taken in the context of the foreclosure sale of the
property, do not provide facts that support enhanced compensatory
damages.

Therefore, Sykes’s claims for enhanced compensatory

3

Sykes’s conclusory statements that New York Mellon Bank
committed fraud and fraudulently misrepresented ownership of the
property are not credited for purposes of the futility analysis.
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damages against the bank defendants in the proposed amended
complaint are futile.
Sykes is granted leave to file an amended complaint that
adds Keller Williams Coastal Realty as a party defendant but is
not granted leave to include claims for enhanced compensatory
damages as part of the claims for civil conspiracy (Count VI),
conversion (Count VIII), and trespass to chattels (Count XIII).

II.

Motion to Dismiss
Because Sykes is granted leave to file an amended complaint

to add Keller Williams Coastal Realty as a party defendant, the
amended complaint when filed will become the operative complaint
in the case.

Sykes is not granted leave to include his claims

for enhanced compensatory damages against the bank defendants in
the amended complaint.

Therefore, the motion to dismiss Sykes’s

claims for enhanced compensatory damages in the prior complaint
is moot.

Conclusion
For the foregoing reasons, the plaintiff’s motion for leave
to file an amended complaint (document no. 50) is granted to the
extent that Keller Williams Coastal Realty is added as a party
defendant but is denied to the extent that it seeks to allege
claims for enhanced compensatory damages in Count VI, Count VIII,
and Count XIII.

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The plaintiff shall file the amended complaint as proposed
except that paragraphs 209, 226, and 284 of the proposed amended
complaint and any other claims for enhanced compensatory damages
against the bank defendants are struck.

No claim for enhanced

compensatory damages against the bank defendants is allowed.

The defendants’ motion to dismiss (document no. 46) is
terminated as moot.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 9, 2014
cc:

Gary M. Burt, Esq.
Kristina Cerniauskaite, Esq.
Terrie L. Harman, Esq.
Andrea Lasker, Esq.
Thomas J. Pappas, Esq.

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