SCHAFFER et al v. HOME MORTGAGE CORPORATION et al
Filing
78
MEMORANDUM OPINION & ORDER granting 68 Motion for Leave to File Amended Complaint; denying without prejudice 73 Motion to Dismiss. Signed by Judge Noel L. Hillman on 10/22/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEREK SCHAFFER,
and CARL DIANTONIO,
Plaintiffs,
1:18-cv-08842-NLH-AMD
MEMORANDUM
OPINION & ORDER
v.
HOME MORTGAGE CORPORATION,
DONALD E. SISSON, and PNC
BANK,
Defendants.
DONALD E. SISSON,
Counter-Claimant,
v.
DEREK SCHAFFER and CARL
DIANTONIO,
Counter-Defendants.
APPEARANCES:
DANIEL HENRY MARIANI
MATTHEW R. MCCRINK
MCCRINK, KEHLER & MCCRINK
475 ROUTE 73 NORTH
WEST BERLIN, NJ 08091
On behalf of Plaintiffs/Counter-Defendants
DONALD E. SISSON
175 ACTION DRIVE
FAYETTEVILLE, GA 30215
Defendant/counter-claimant appearing pro se
JAMES A. KASSIS
SCHENCK, PRICE, SMITH, & KING, LLP
220 PARK AVENUE
PO BOX 0991
FLORHAM PARK, NJ 07932-0991
On behalf of Defendant PNC Bank
HILLMAN, District Judge
WHEREAS, this matter concerns claims by Plaintiffs that
Defendants conspired to steal or convert Plaintiffs’ funds
deposited in an escrow account at PNC Bank intended as a good
faith deposit for Plaintiffs’ purchase of Home Mortgage
Corporation; and
WHEREAS, currently pending before the Court is Plaintiffs’
motion for leave to file a third amended complaint (Docket No.
68); and
WHEREAS, Defendant PNC Bank has filed a letter stating that
it does not oppose Plaintiffs’ motion (Docket No. 71); and
WHEREAS, Defendant Donald Sisson, who is appearing pro se,
filed an answer to Plaintiffs’ proposed third amended complaint
(Docket No. 72); and
WHEREAS, amendments to pleadings are governed by Federal
Civil Procedure Rule 15, which provides that the Court “should
freely give leave when justice so requires,” Fed. R. Civ. P.
15(a)(2), and an amendment must be permitted in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment.
Grayson v. Mayview State Hosp., 293 F.3d
2
103, 108 (3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)); and
WHEREAS, the Court finds no reason to not grant Plaintiffs’
motion to file a third amended complaint; 1 and
WHEREAS, also pending before the Court is Sisson’s motion
(1) to dismiss Plaintiffs’ claims against him because Plaintiffs
have “not proven any of the allegations contained in any of
previous or current complaints filed under this Civil Action,”
(2) award judgment in his favor on those claims, and (3) award
him damages on his counterclaims (Docket No. 73, “MOTION TO
DISMISS DEFENDANT DONALD E SISSON AND AWARD DAMAGES”); and
WHEREAS, as the Court noted in consideration of prior
motions to dismiss filed by Sisson regarding the previous
versions of the complaint:
Sisson filed an answer to Plaintiff’s original complaint
and asserted a counterclaim. (Docket No. 5.) After
Plaintiffs filed their first amended complaint and their
second amended complaint, Sisson filed two motions to
dismiss. (Docket No. 16, 17.) Sisson’s motions contest the
substance of Plaintiffs’ allegations and relate his version
of what occurred. In that way, Sisson’s motions are more
akin to summary judgment motions pursuant to Fed. R. Civ.
P. 56, rather than motions to dismiss pursuant to Fed. R.
Civ. P. 12. See Fed. R. Civ. P. 12(d) (“If, on a motion
1
Plaintiffs’ proposed third amended complaint has modified the
parties. Plaintiffs are no longer proceeding on behalf of Home
Mortgage Corporation, and defendants Joel S. Ardgetti, Esq.,
Larry Warner, and Robin Holland are no longer named as
defendants. Defendant Marvin J. Zagoria is named a defendant in
the proposed third amended complaint, but since Plaintiffs filed
their motion, they have voluntarily dismissed their claims
against him. (Docket No. 77.)
3
under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule
56.”). The Court, however, will not convert Sisson’s
motion into one for summary judgment because it is too
early in the case to resolve any disputed facts. See
Petcove v. Public Service Electric & Gas, 2019 WL 137652,
at *3 (D.N.J. 2019) (quoting Kurdyla v. Pinkerton Sec., 197
F.R.D. 128, 131 (D.N.J. 2000)) (“A court should not convert
a motion . . . when little or no discovery has occurred.”).
(Docket No. 57 at 7 n.4.); and
WHEREAS, the Court finds that the same analysis applies to
Sisson’s current motion to dismiss; and
WHEREAS, with regard to Sisson’s filing of his answer and
counterclaim to Plaintiffs’ proposed third amended complaint
directly after Plaintiffs filed their motion for leave to file a
third amended complaint, rather than waiting until after
Plaintiffs’ third amended complaint was approved by the Court,
because of Sisson’s pro se status, the Court will deem Sisson’s
answer to the proposed third amended complaint to be a timely
filed response to Plaintiffs’ third amended complaint, including
his counterclaim; 2
THEREFORE,
IT IS on this
22nd
day of
October
, 2019
ORDERED that the First MOTION for Leave to File Amended
Complaint by CARL DIANTONIO, DEREK SCHAFFER [68] be, and the
2
The Court will deem today’s date to be the filing date of
Sisson’s counterclaims so that the counter-defendants may
respond accordingly.
4
same hereby is, GRANTED; and it is further
ORDERED that the MOTION to Dismiss by DONALD E. SISSON [73]
be, and the same hereby is, DENIED WITHOUT PREJUDICE.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
5
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