Alper et al v. Ocwen Loan Servicing, LLC

Filing 11

///ORDER granting 8 Motion for Leave to Amend and to Remand; denying as moot 10 Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jay S. Alper and
Colleen J. Alper
v.

Civil No. 18-cv-044-JD
Opinion No. 2018 DNH 039

Ocwen Loan Servicing, LLC

O R D E R
Jay and Colleen Alper, proceeding pro se, brought suit in
state court, alleging federal and state claims against Ocwen
Loan Servicing, LLC.

Ocwen removed the case to this court based

on federal question jurisdiction, 28 U.S.C. § 1331.

The Alpers

move for leave to amend their complaint and also move to remand
the case to state court.

Ocwen objects, arguing that the motion

is procedurally improper and the proposed amendments are futile.
Because the Alpers move for both leave to amend and to
remand the case, they have improperly combined two motions for
separate relief into a single filing.

LR 7.1(a)(1).

Further,

the motion to remand will not be ripe unless and until the
motion to amend is granted.

In light of their pro se status,

however, the court will not require the Alpers to refile the
motions in compliance with Rule 7.1(a)(1) and instead will
consider the motions seriatim.

I.

Motion to Amend
The Alpers move for leave to amend their complaint to

withdraw their federal claims alleging that Ocwen violated the
Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.1

In

support, they cite Federal Rule of Civil Procedure 15(a), which
provides that leave to amend “shall be freely given when justice
so requires.”

The Alpers also explain that they are withdrawing

their federal claims in order to avoid federal subject matter
jurisdiction in support of their motion to remand.
In response, Ocwen contends that the motion to amend is
untimely.

Ocwen also contends that the proposed amended

complaint is futile because the claims are time barred, because
the Alpers released their claims under the New Hampshire Fair
Credit Reporting Act in 2014, and because the state law claims
are preempted by the federal Fair Credit Reporting Act.
A.

Timing of Motion

Ocwen contends that the motion for leave to amend is both
too early and too late.

In support, Ocwen cites Federal Rule of

Civil Procedure 15(a)(1) that allows a plaintiff to amend as a
matter of course within twenty-one days after serving the

In their complaint, the Alpers refer to the Act as the
Fair Debt Reporting Act, but, based on the citation to 15 U.S.C.
§ 1681, they apparently intended to cite the Fair Credit
Reporting Act.
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complaint or within twenty-one days after an answer or a motion
under Rule 12(b).

Because the Alpers’ motion was filed more

than twenty-one days after they filed their complaint in state
court but before Ocwen filed a response, Ocwen contends that the
motion cannot be considered.2
Contrary to Ocwen’s theory, the Alpers have moved for leave
to amend, as provided in Rule 15(a)(2), and do not rely on
amendment as a matter of course, as provided in Rule 15(a)(1).
Therefore, the timing issue raised by Ocwen is meritless.
B. Futility
Ocwen also contends that the proposed amendment is futile
because the claims are time barred, were released in a 2014
settlement agreement, and are preempted by the federal Fair
Credit Reporting Act.

The Alpers did not file a reply and,

therefore, did not respond to Ocwen’s futility arguments.

Ocwen

has also filed a motion to dismiss the original complaint.
Ocwen’s futility arguments would be more appropriately
addressed in the context of a motion to dismiss.
C.

Amendment

The Alpers are granted leave to amend their complaint.
When the amended complaint is docketed, it will supersede the

The court granted the parties’ motion to extend the time
for Ocwen to respond to the complaint.
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original complaint, rendering the pending motion to dismiss
moot.

See Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir.

2008); Kendall v. SOciety for the Protection of N.H. Forests,
2017 WL 2683991, at *6 (D.N.H. June 21, 2017).
II.

Motion to Remand
Based on the absence of a federal claim in the amended

complaint, the Alpers also move to remand the case back to state
court.

In support, the Alpers contend that without a federal

claim federal question jurisdiction under § 1331 is lacking and
ask the court to decline to exercise supplemental jurisdiction
over the state law claims.

The Alpers also assert that subject

matter jurisdiction under § 1332, based on diversity of
citizenship, cannot be the basis for denying their request to
remand because Ocwen did not cite § 1332 in the notice of
removal and because the amount in controversy does not exceed
$75,000.
“An amendment to a complaint after removal designed to
eliminate the federal claim will not defeat federal
jurisdiction.”

Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir.

1990); see also Akorede v. Tex. Dep’t of Assistive Rehab.
Servs., 2017 WL 3394527, at *5 (S.D. Tex. Aug. 7, 2017) (citing
cases and 14B Wright, Miller, Cooper & Steinman, Federal
Practice and Procedure § 3721 (4th ed. 2009)).

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Instead, the

court must decide whether to retain supplemental subject matter
jurisdiction over the state law claims pursuant to 28 U.S.C.
§ 1367(c).

When the federal claims that were the basis for

federal subject matter jurisdiction are dismissed or withdrawn,
district courts ordinarily will decline to exercise supplemental
jurisdiction over the remaining state law claims.

§ 1367(c)(3);

Artis v. District of Columbia, 138 S. Ct. 594, 597-98 (2018);
League of Women Voters of N.H. v. N.H. Sec. of State, 2017 WL
3842593, at *2 (D.N.H. Sept. 3, 2017).

Generally, when all

federal claims are withdrawn early in the litigation, the
district court should decline to exercise supplemental
jurisdiction over remaining state law claims.

Camelio v. Am.

Fed’n, 137 F.3d 666, 672 (1st Cir. 1998); accord Desjardins v.
Willard, 777 F.3d 43, 45-46 (1st Cir. 2015).
This case was removed on January 16, 2018, less than two
months ago.

The Alpers immediately moved to amend the complaint

to withdraw the federal claims and to remand the case to state
court.

Although Ocwen filed a motion to dismiss while the

motion to amend and remand was pending, that motion will become
moot when the amended complaint is docketed.
Therefore, it is appropriate under the circumstances to
decline to exercise supplemental jurisdiction over the state law
claims that will be the only claims remaining in this case when
the amended complaint is docketed.
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Conclusion
For the foregoing reasons, the plaintiffs’ motion for leave
to amend and to remand the case to state court (document no. 8)
is granted.
The clerk of court shall docket the amended complaint,
which is attached to the motion to amend as document 8-1.
The defendant’s motion to dismiss (document no. 10) is
denied without prejudice as moot.
Once the amended complaint is docketed, the clerk of court
shall remand the case to the Rockingham County Superior Court.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 5, 2018
cc:

Jay S. Alper, pro se
Coleen J. Alper, pro se
Joe N. Nguyen, Esq.
L. John Vassalotti, III, Esq.
Benjamin M. Greene, Esq.

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