PENG et al v. CITIMORTGAGE INC. et al

Filing 108

MEMORANDUM ORDER & OPINION denying 84 Motion for Reconsideration ; denying 88 Motion to Amend/Correct; denying 92 Motion to Reopen Case and denying 101 Motion. Case Closed. Signed by Judge Renee Marie Bumb on 9/17/13. (js)

NOT FOR PUBLICATION

[Dkt. Nos. 84, 88, 92 and 101]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ELVIRA PENG, et al.,

Plaintiffs,
v.
CITIMORTGAGE, et al.,
Defendants.

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: Civil Action No. 12-395
: (RMB/JS)
:
:
: MEMORANDUM ORDER & OPINION
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:
:

BUMB, United States District Judge:
On November 15, 2012, this Court entered an Order
administratively terminating all pending motions in this case in
order to permit the Plaintiffs Elvira Peng and Daniel Chiong,
both appearing pro se, an opportunity to obtain legal counsel as
they had requested.

On January 9, 2013, Plaintiffs filed a

letter requesting that the Court put this case on “hold” because
they did not yet have legal counsel, and Plaintiff Chiong would
not be finishing his “studies” until August 2013. [Dkt. Ent. No.
101].

Additionally, Plaintiffs sought the opportunity to seek

the “help of the Consumer Fraud Protection Bureau.” [Dkt. Ent.
101].

Over ten months have passed and neither Plaintiff has

entered an attorney’s appearance.

For the reasons set forth herein, (1) the Clerk of the
Court is directed to re-open this matter, (2) Plaintiffs’ motion
[Dkt. Ent. 101] to put this matter on “hold” is DENIED, and
(3) all pending motions, Plaintiffs’ Motion for Reconsideration
[Dkt. Ent. 84], Plaintiffs’ Motion to Re-open the Case against
Defendant Vineland [Dkt. Ent. 92], and Plaintiffs’ Motion for
Leave to File an Amended Complaint [Dkt. Ent. 88] are all
DENIED.
BACKGROUND
On January 18, 2012, Plaintiffs filed this action against
Defendants CitiMortgage, Inc. (“CitiMortgage”), Source One
Mortgage, Inc., and Mortgage of Electronic Registration Systems,
Inc. (“MERS”).

Plaintiffs purported to allege violations of the

Truth in Lending Act (“TILA”) and Real Estate Settlement
Procedure Act (“RESPA”), as well as numerous purported state
causes of action.

Plaintiffs had earlier filed, on December 16,

2011, a related case in the Superior Court of New Jersey,
Cumberland County, against only Defendant CitiMortgage,
essentially alleging similar facts but not specifically alleging
TILA or RESPA violations.

On February 9, 2012, Defendant

CitiMortgage removed the state court action to this Court on the
grounds that there was complete diversity of citizenship under

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28 U.S.C. § 1332.1

The Court consolidated both actions for case

management purposes on February 17, 2012, and for all purposes
on April 17, 2012.

Defendants CitiMortgage and MERS moved to

dismiss the complaints in both actions.

This Court held oral

argument on April 16, 2012.
After extensive oral argument, the Court granted the
motions to dismiss without prejudice and gave Plaintiffs thirty
days to file an amended complaint addressing the various and
numerous deficiencies identified during the oral argument.
Thereafter, Plaintiffs filed an amended complaint, dropping MERS
as a defendant and naming the City of Vineland (“Vineland”),
Landmark Building Development Co. (“Landmark”), Landis Title
Corp., and TD Bank as defendants.

Each of these defendants

thereafter moved to dismiss the amended complaint.

The Court

conducted yet another extensive oral argument on September 7,
2012.

By Order dated September 24, 2012 [Dkt. Ent. 83], the

Court dismissed the amended complaint with prejudice against the
City of Vineland.

The Court further ordered that all claims

sounding in TILA and RESPA against the remaining defendants were
dismissed with prejudice, but afforded Plaintiffs yet another
opportunity to re-plead their fraud-based claims by October 8,
2012.

Recognizing that Plaintiffs were appearing pro se, the

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CitiMortgage also noted that the complaint appeared to allege
causes of action under “possibly federal law.” [Dkt. Ent. 1].
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Court afforded Plaintiffs such opportunity to amend so that it
could discern the exact causes of action.

The Court noted

during oral argument that it was difficult to ascertain what
claims Plaintiffs were alleging.

Plaintiffs’ motion for leave

to file a second amended complaint [Dkt. Ent. 88] followed.
Motion for Reconsideration and Motion to Re-Open
The first motions before the Court are titled (a) “PETITION
FOR RECONSIDERATION TO REVERSE THE DECISION OF JUDGE RENEE MARIE
BUMB ON HER DECISION TO THE DEFENDANT VINELAND MUNICIPAL
DISMISSING THE PLAINTIFFS AMMENDED COMPLAINT WITH PREJUDICE TO
WITHOUT PREJUDICE” [Dkt. Ent. 84]; and (b) “MOTION TO RE-OPEN
THE CASE FOR THE DEFENDANT VINELAND MUNICIPAL OR CITY OF
VINELAND AND MOTION FOR ‘LIS PENDES’” [Dkt. Ent. 92].

The Court

understands both motions to seek reconsideration of the Court’s
prior ruling dismissing Vineland as a defendant.
Motions for reconsideration are not expressly recognized in
the Federal Rules of Civil Procedure.

United States v.

Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Generally, a motion for reconsideration is treated as a motion
to alter or amend judgment under Federal Rule of Civil Procedure
59(e), or as a motion for relief from judgment under Rule 60(b).
Id.

In the District of New Jersey, Local Civil Rule 7.1(i)

governs motions for reconsideration.

Agostino v. Quest

Diagnostics, Inc., Civ. No. 04-4362, 2010 WL 5392688, *5 (D.N.J.
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Dec. 22, 2010) (citing Bryan v. Shah, 351 F. Supp. 2d 295, 297
(D.N.J. 2005)).

Local Rule 7.1(i) creates a procedure by which

a court may reconsider its decision upon a showing that
dispositive factual matters or controlling decisions of law were
overlooked by the court in reaching its prior decision.”

Id.

(citing Bryan, 351 F. Supp. 2d at 297).
The “purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.”

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985), cert. den’d, 476 U.S. 1171 (1986) (internal citation
omitted).

Reconsideration is to be granted only sparingly.

United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).

Such

motions “may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior
to the entry of judgment.”

NL Indus., Inc. v. Commercial Union

Ins. Co., 935 F. Supp. 513, 515-16 (D.N.J. 1996) (internal
citation omitted).

Reconsideration is only appropriate if:

(1) there has been an intervening change in the controlling law;
(2) evidence not available when the Court issued the subject
order has become available; or (3) it is necessary to correct a
clear error of law or fact to prevent manifest injustice.

Max’s

Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)
(internal citations omitted).

Further, “any evidence not

supported with citation to the record and overlooked by the
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Court will not be grounds for a motion for reconsideration.”
Gilbert v. Camden City, Civ. No. 04-3268, 2007 WL 1040978, *4
(D.N.J. Apr. 4, 2007).
Both motions rehash the very same arguments over which this
Court labored during oral argument on September 7, 2012.

This

Court made a considerable effort in attempting to ascertain the
allegations as stated by Plaintiffs.

After having done so, and

upon careful consideration, the Court dismissed all of
Plaintiffs’ claims against the City of Vineland.

Accordingly,

because neither motion sets forth any reason for this Court to
correct its prior ruling, both motions are DENIED.
Motion for Leave to File Second Amended Complaint
Plaintiffs’ motion titled “MOTION TO LEAVE IN COURT AND
FILE THE SECOND AMMENDED COMPLAINT AND TO ADD KARL SENSEMAN AS
DEFENDANT” [Dkt. Ent. 88] fares no better.

Leave to amend

should be denied when the proposed amendment would be futile.
See generally In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1434-35 (3d Cir. 1997).

In this context, futility

“means that the complaint, as amended, would fail to state a
claim upon which relief could be granted.

In assessing

‘futility,’ the district court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6).”

Id. at 1434.

Plaintiffs’ proposed amended complaint re-alleges the
various federal claims that this Court had previously dismissed,
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but adds a new defendant, Karl Senseman.

The Court has reviewed

the proposed amended complaint and it is replete with either
conclusory allegations or legal conclusions.

In many instances,

as the Defendants point out in their opposition briefs, the
allegations are flatly contradicted by documents referenced in
the proposed amended complaint, as the Court had discussed at
oral argument.
The Court repeatedly advised Plaintiffs that any proposed
amended complaints would be required to comport with the
provisions of Federal Rules of Civil Procedure 9(b) which
provides that “in alleging fraud or mistakes, a party must state
with particularity the circumstances constituting fraud or
mistake.”

Fed.R.Civ.P. 9(b).

The reason for such rule, as

explained by the Court, was to “provide Defendants with notice
of the precise misconduct with which they are charged, and to
safeguard the Defendants against serious charges of immoral and
fraudulent behavior.”

Seville Industries Machine Corp. v.

Southmost Machine Corp., 742 F.2d 786, 791 (3d Cir. 1984).

The

allegations in the proposed amended complaint do not comport
with Fed. R. Civ. P. 9(b).

Moreover, scattered throughout the

proposed complaint are bare citations to various federal
statutes other than RESPA and TILA, e.g., 42 U.S.C. § 1981
(¶ 56), 42 U.S.C. § 1983 (¶¶ 67 and 93). Merely citing a federal
statute will not suffice to state a cause of action.
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In addition, Plaintiffs appear to assert various state law
claims although it is difficult for the Court to identify
precisely what the causes of action or applicable state laws
are.

The proposed amended complaint alleges the following

“FRAUDULENT MISREPRESENTATION; CONSTRUCTIVE FRAUD; CONSUMER
FRAUD; BREACH OF FIDUCIARY DUTY; BREACH OF CONTRACT; UNFAIR
BUSINESS PRACTICE;” “UNCONSCIONABLE COMMERCIAL PRACTICE;” and/or
“FRAUDULENT CONSPIRACY.”

[Dkt. Ent. 88 at 2, 7, 12]. It is

well-settled that “factual allegations must be enough to raise a
right to relief above the speculative level,” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 663,
678 (2009).

Plaintiffs’ claims, to the extent they even allege

a recognizable cause of action, which is uncertain, are based on
the same insufficient, conclusory, or contradictory allegations
as Plaintiffs’ purported federal claims.

For example,

Plaintiffs allege breach of contract claims against Defendants
Landmark and Senseman based upon an inaccurate square footage
measurement, but they admit that the contract provided that
dimensions were “approximate” only.

[Id. At 2-3].

Such

allegations mandate dismissal of their breach of contract
claims.

Moreover, most of these other purported state law

claims appear to sound in fraud (e.g., “unconscionable,”
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“unfair,” “fraudulent,” etc.) and therefore fail because they do
not satisfy the requirements of Rule 9(b) as set forth above.
Accordingly, because the Court cannot ascertain from the
proposed amended complaint any federal or state cause of action
entitling Plaintiffs to relief, this Court will deny the Motion
to File a Second Amended Complaint.
In addition, no further amendments to the pleadings will be
permitted.

Although leave to amend is generally granted

liberally, a court may deny a motion to amend where there is
“undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of the
amendment.”

See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.

2000); Foman v. Davis, 371 U.S. 178, 182 (1962).

Here, despite

providing Plaintiffs several opportunities to amend their
complaint so as to cure the deficiencies that the Court has
painstakingly pointed out, the allegations of the proposed
amended complaint are still insufficient.

As such, the Court

finds that permitting further amendments to Plaintiffs’
complaint would both be futile and cause additional undue delay
to these proceedings.

See Baumgardner v. Ebbert, No. 13-2107,

2013 WL 4047436, at *3 n.2 (3d Cir. Aug. 12, 2013) (“Having had
two opportunities to amend his complaint, we agree with the
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District Court that allowing Baumgardner to amend for a third
time would be futile.”

(citing Grayson v. Mayview State Hosp.,

293 F.3d 103, 114 (3d Cir. 2002))).
Motion to Put the Case on Hold
Finally, Plaintiffs seek an Order from this Court to “HOLD
THE PROCEEDING OF THIS CASE UNTIL THE PLAINTIFFS FIND THEIR
LEGAL COUNCIL IN BEHALF TO THEM OR TO CONTINUE THE CASE WITH OUT
THE PARTICIPATION OF MR. DANIEL CHIONG DUE TO THE CONFLICT OF
HIS STUDY, ONLY ELVIRA PENG WILL CONTINUE TO THE CASE, AFTER SHE
RECEIVED THE ADVICE FROM THE CONSUMER PROTECTION BUREAU.” This
Court sees no reason to grant Plaintiffs’ request.

The Court

gave Plaintiffs an opportunity to secure counsel almost ten
months ago, and they have failed to secure representation.

To

put this case on hold indefinitely, as Plaintiffs’ request,
would inure to the detriment of the Defendants, as well as this
Court.

While this Court recognizes that there is some deference

to be given to a pro se plaintiff, see Erickson v. Pardus, 551
U.S. 89 (2007), a pro se plaintiff must nonetheless be prepared
to litigate his or her case.

Each defendant, as well as this

Court, has attempted to respond to the various motions filed by
Plaintiffs.

A considerable amount of resources, including

judicial resources, have been spent to give the Plaintiffs their
“day in Court.”

The Court has undertaken considerable efforts

to assist Plaintiffs in understanding what their allegations
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must set forth, and it has given Plaintiffs ample opportunity to
file pleadings that comport with the law.

It can do no more.

Plaintiffs are not entitled to delay these proceedings further
merely for their convenience.

In sum, having given Plaintiffs

the deference they are due, the Court is no longer willing to
protract this litigation.

Accordingly, Plaintiffs’ motion to

put this matter on “hold” is DENIED.
Accordingly, for all of the above reasons,
IT IS on this, the 17th day of September 2013, hereby
ORDERED that all pending motions, Plaintiffs’ Motion for
Reconsideration [Dkt. Ent. 84], Plaintiffs’ Motion to Re-open
the Case against Defendant Vineland [Dkt. Ent. 92], Plaintiffs’
Motion for Leave to File an Amended Complaint [Dkt. Ent. 88],
and Plaintiffs’ motion to put this matter on “hold” [Dkt. Ent.
101] are DENIED; and it is further
ORDERED that the First Amended Complaint [Dkt. Ent. 20] is
DISMISSED in its entirety with prejudice; and it is further
ORDERED that, having provided Plaintiffs with several
opportunities to cure the deficiencies in their complaint to no
avail, and finding that any further amendments would be futile
and result in undue delay, no further amendments will be
permitted; and it is further

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ORDERED that the Clerk of the Court shall close the file.

s/ Renée Marie Bumb
Renée Marie Bumb
United States District Judge

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