SCALERCIO-ISENBERG v. CREDIT SUISSE GROUP et al
Filing
87
OPINION. Signed by Judge Brian R. Martinotti on 10/22/2024. (lag, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SHERRY SCALERCIO-ISENBERG,
Plaintiff,
Case No. 2:22-cv-02705 (BRM) (AME)
v.
SELECT PORTFOLIO SERVICING, INC., et
al.,
OPINION
Defendants.
MARTINOTTI, DISTRICT JUDGE
Before the Court are Defendants Select Portfolio Servicing, Inc. (“SPS”), Brett L.
Messinger (“Messinger”), and Kassia Fialkoff’s (“Fialkoff”) (together, the “Duane Morris
Defendants”) Motion to Dismiss (ECF No. 81), as well as Defendants Mitchell Scott Kurtz
(“Kurtz”) and Robert D. Bailey’s (“Bailey”) (together, the “Parker Ibrahim Defendants”) Motion
to Dismiss (ECF No. 82) pro se Plaintiff Sherry Scalercio-Isenberg’s (“Plaintiff”) Second
Amended Complaint (ECF No. 78) pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff
filed an opposition on April 1, 2024. (ECF No. 83.) On April 8, 2024, the Parker Ibrahim
Defendants filed a reply. (ECF No. 84.) Having reviewed the submissions filed in connection with
the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure
78(b), for the reasons set forth below and for good cause having been shown, the Duane Morris
Defendants’ Motion to Dismiss (ECF No. 81) is GRANTED and the Parker Ibrahim Defendants’
Motion to Dismiss (ECF No. 82) is GRANTED. Plaintiff’s Second Amended Complaint (ECF
No. 78) is DISMISSED WITH PREJUDICE.
I.
BACKGROUND
A.
Factual Background
For the purpose of these Motions to Dismiss, the Court accepts the factual allegations in
the Complaint as true and draws all inferences in the light most favorable to Plaintiff. See Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). The Court also considers any “document
integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Digit. Equip. Corp., 82 F.3d 1194, 1220 (1st
Cir. 1996)).
This action arises from a home foreclosure due to an unpaid mortgage. Plaintiff attempted
to make mortgage payments to SPS, but these payments were placed in an SPS account titled
“Unapplied.” (ECF No. 78 at 7.) As a result, the money was never applied to the outstanding
mortgage balance, meaning the account balance increased and the non-payment was reported to
credit agencies, resulting in negative assessments against Plaintiff’s credit rating. (Id.)
In June 2022, Plaintiff received a debt collection notice from Duane Morris, LLP (“Duane
Morris”) and immediately attempted to contact Duane Morris to indicate she disputed the
outstanding amounts listed in the notice. (Id. at 6, 8.) Plaintiff spoke with Fialkoff, who noted her
dispute and, in response to a question from Plaintiff, stated she had not filed a notice of appearance
on behalf of the Goldman Sachs entity Legacy Mortgage Asset Trust (“LMAT”) in any court. (Id.
at 8.) Plaintiff filed her initial complaint for this action in the Southern District of New York
(“SDNY”) on April 19, 2022. (ECF No. 1.) Plaintiff then sent a letter dated June 17, 2022,
containing details of this civil action to the Philadelphia office of Duane Morris. (ECF No. 78 at
9.) Plaintiff states that various lawyers engaged in a coordinated campaign of harassment in
response to her disputing the outstanding mortgage debt. (Id. at 7.)
2
On July 29, 2022, a Foreclosure Action was filed against the property subject to the
mortgage. (Id. at 11, 39.) Messinger, in completing the New Jersey Chancery Division Foreclosure
Case Information Statement (“FCIS”), did not include the federal lawsuits filed by Plaintiff
disputing the debt. (Id. at 39.)
On or about December 20, 2022, Plaintiff and her husband, Marcus Isenberg (“Isenberg”),
made a payment of $100,000 to SPS via their lawyer, Mr. William Askin (“Askin”). (ECF No. 40
¶ 42.)1 Askin issued a check for the total amount demanded in the mortgage loan pay-off statement.
(Id.) Plaintiff and Isenberg then proceeded to sell the home subject to the mortgage. (Id. ¶ 43.)
B.
Procedural History
Plaintiff filed her initial Complaint in the SDNY on April 19, 2022. (ECF No. 1.) On May
2, 2022, Judge Laura Taylor Swain ordered the case transferred from the SDNY to the District of
New Jersey (“DNJ”) on the basis that the events detailed in the Complaint, including the debt
collection against Plaintiff and alleged harassment of Plaintiff, occurred in New Jersey. (ECF No.
5 at 3–5.)
On June 28, 2022, Plaintiff moved for default judgment against SPS. (ECF No. 18.) On
July 6, 2022, the Parker Ibrahim Defendants filed a Motion to Dismiss the Complaint against them
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and
12(b)(6) for failure to state a claim upon which relief may be granted. (ECF Nos. 21, 21-1.) On
August 1, 2022, Plaintiff moved for default judgment against Defendant Credit Suisse Group
(“Credit Suisse”). (ECF No. 25.) On August 19, 2022, SPS filed a Motion to Dismiss the
Complaint for failure to effect service pursuant to Federal Rule of Civil Procedure 4(m). (ECF
1
In the Second Amended Complaint, Plaintiff states she incurred over $160,000 of damages
“directly related to the Loan payoff amount.” (ECF No. 78 at 42.)
3
Nos. 27, 27-1.) The Court issued an opinion on February 28, 2023, denying Plaintiff’s Motions for
Default Judgment against SPS and Credit Suisse, denying SPS’s Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 4(m), and granting the Parker Ibrahim Defendants’ Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 35.) The
Court dismissed Plaintiff’s claims against the Parker Ibrahim Defendants without prejudice for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Id.)
Plaintiff filed an amended complaint on March 8, 2023. (ECF No. 40.) The Amended
Complaint2 alleged the following causes of action: (1) violation of the Racketeer Influenced and
Corrupt Organization (“RICO”) statute by all Defendants (Count I); (2) violation of the Fair Debt
Collection Practices Act (“FDCPA”), 18 U.S.C. § 1692, by Messinger (Count II); (3) Conspiracy
to Commit Mortgage Fraud and Mortgage Servicing Fraud by all Defendants (Count III); (4)
violation of the Fair Credit Reporting Act (“FCRA”) 15 U.S.C. §§ 1681, 1683, by all Defendants
(Count IV); (5) violation of the FDCPA, 18 U.S.C. § 1692(g), by all Defendants (Count V); (6)
Mortgage Fraud by all Defendants (Count VI); and (7) Home Foreclosure Fraud and Perjury by
Messinger (Count VII).
The Parker Ibrahim Defendants filed a motion to dismiss Plaintiff’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 22, 2023. (ECF No. 45.) The Duane
Morris Defendants filed a motion to dismiss Plaintiff’s Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) on May 17, 2023. (ECF No. 54.) Plaintiff filed an opposition to
the Duane Morris Defendants’ Motion to Dismiss on June 13, 2023. (ECF No. 62.) The Duane
Morris Defendants filed a reply on June 21, 2023. (ECF No. 63.) The Court issued an opinion and
2
Plaintiff named the same defendants in her First Amended Complaint as she did in her initial
Complaint in addition to Messinger and Fialkoff. (ECF Nos. 1, 40.)
4
order on January 31, 2024, granting the Duane Morris Defendants’ Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 54.) The Court dismissed Plaintiff’s claims
against the Duane Morris Defendants with prejudice for claim preclusion as to Counts I and VI,
with prejudice for issue preclusion as to Counts IV and V, and without prejudice with leave to
amend for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) as to Counts II,
III, and VII. (ECF No. 71.) Subsequently, the Court issued an opinion on February 16, 2024,
granting the Parker Ibrahim Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 45.) The Court dismissed Plaintiff’s claims against the Parker
Ibrahim Defendants without prejudice with leave to amend. (ECF No. 76.)
Plaintiff filed a Second Amended Complaint on February 20, 2024. (ECF No. 78.) The
Second Amended Complaint3 alleged the following causes of action: (1) violation of the FDCPA,
18 U.S.C. § 1692, by Fialkoff (Count I); (2) violation of the FDCPA, 18 U.S.C. § 1692, by SPS
(Count II); (3) violation of the FDCPA, 18 U.S.C. § 1692, by Messinger (Count III); (4) violation
of the FDCPA and Conspiracy to Commit Mortgage Servicing Fraud and Mortgage Fraud by the
Parker Ibrahim Defendants (Count IV); (5) Home Foreclosure Fraud and Perjury by Messinger
(Count V); and (6) Mortgage Servicing Fraud by Messinger and SPS (Count VI). On March 19,
2024, the Duane Morris Defendants and the Parker Ibrahim Defendants both filed Motions to
Dismiss Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF Nos. 81, 82.) On April 1, 2024, Plaintiff filed an opposition to both motions to
3
Plaintiff notes in the Second Amended Complaint this Court’s footnote in the January 31, 2024,
Opinion and Order (ECF Nos. 71, 72) that the Parker Ibrahim Defendants did not participate in the
Duane Morris Defendants’ Motion to Dismiss the First Amended Complaint (ECF No. 54). The
Parker Ibrahim Defendants’ Motion to Dismiss the First Amended Complaint (ECF No. 45) was
addressed by this Court in the February 16, 2024, Opinion and Order (ECF Nos. 76, 77).
5
dismiss.4 (ECF No. 83.) On April 8, 2024, the Parker Ibrahim Defendants filed a reply. (ECF No.
84.)
C.
Related Cases
1.
Prior DNJ Action
Plaintiff filed a previous case against SPS in the DNJ on April 20, 2020 (the “Prior DNJ
Action”). (Civ. A. No. 20-04501, ECF No. 1.) The complaint alleged five causes of action: (1)
violation of the FCRA, 15 U.S.C. § 1681 (Count I); (2) Mortgage Fraud under the New Jersey
Consumer Fraud Act (“NJCFA”), N.J. Stat. Ann. § 56:8-19 (Count II); (3) violation of the FDCPA,
15 U.S.C. § 1692 (Count III); (4) Extortion (Count IV); and (5) Money Laundering (Count V).
(Id.) SPS filed a motion to dismiss the original complaint on May 28, 2020. (Id., ECF No. 7.) The
Honorable Anne E. Thompson, U.S.D.J. (“Judge Thompson”) granted the motion and dismissed
the complaint without prejudice on September 30, 2020. (Id., ECF No. 13.)
Plaintiff filed an amended complaint on October 6, 2020. (Id., ECF No. 16.) SPS filed a
motion to dismiss the amended complaint on October 23, 2020. (Id., ECF No. 19.) Judge
Thompson granted the motion and dismissed the amended complaint with prejudice on January
27, 2021. (Id., ECF No. 32.) Judge Thompson dismissed the claims on the following grounds: (1)
Count I because SPS was not put on notice of the credit report dispute by a credit reporting agency;
(2) Count II because SPS did not engage in sale or advertisement of merchandise or real estate; (3)
Count III because SPS does not qualify as a “debt collector”; and (4) Counts IV and V because
4
The Court notes Plaintiff submitted two items following her Opposition: (1) an exhibit being
offered as further “corroborating evidence” (ECF No. 85) and (2) a document filed as a Text of
Proposed Order (ECF No. 86), but which purports to correct this Court’s February 16, 2024,
Opinion (ECF No. 76) as well as give a Proposed Order for the Second Amended Complaint (ECF
No. 78).
6
New Jersey does not recognize civil extortion and money laundering actions. (Id., ECF No. 32 at
3–5.)
2.
The Foreclosure Action
On July 29, 2022, LMAT filed a Foreclosure Action against Plaintiff, Marcus Isenberg,
and Charter One (the “Foreclosure Action”) in the Superior Court of New Jersey, Chancery
Division, Sussex County (“Superior Court”). (Case No. SWC-F-007893-22, Trans ID.
CHC2022176074.) Plaintiff filed an answer, claiming Messinger failed to include related cases to
the foreclosure in the FCIS, and LMAT was a participant in a mortgage fraud scheme against
Plaintiff. (Id., Trans ID. CHC2022271214.) The Superior Court found the answer to be noncontesting and transferred the case to the Office of Foreclosure. (Id., Trans. ID. CHC2022283434.)
On December 29, 2022, LMAT voluntarily dismissed the Foreclosure Action without prejudice.
(Id., Trans. ID. CHC2022310631.)
II.
LEGAL STANDARD
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences from the facts alleged in the light most favorable to [the non-moving party].” Phillips,
515 F.3d at 228. “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.” Id. (alterations in original). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead,
7
assuming factual allegations in the complaint are true, those “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 663 (citing Twombly, 550 U.S. at 556). This “plausibility
standard” requires the complaint allege “more than a sheer possibility that a defendant has acted
unlawfully,” but it “is not akin to a ‘probability requirement.’” Id. at 678 (citing Twombly, 550
U.S. at 556). “[D]etailed factual allegations” are not required, but “more than an unadorned, thedefendant-unlawfully-harmed-me accusation” must be pled; it must include “factual
enhancements” and not just conclusory statements or a recitation of the elements of a cause of
action. Id. (citations omitted). In assessing plausibility, the Court may not consider any “[f]actual
claims and assertions raised by a defendant.” Doe v. Princeton Univ., 30 F.4th 335, 345 (3d Cir.
2022).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). Indeed,
after Iqbal, it is clear that conclusory or “bare-bones” allegations will no longer survive a motion
to dismiss: “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. To prevent dismissal, all civil complaints must
8
now set out “sufficient factual matter” to show that the claim is facially plausible. This “allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The Supreme Court’s ruling in Iqbal emphasizes that a plaintiff must show that the allegations of
his or her complaints are plausible. See id. at 670.
While, as a general rule, the Court may not consider anything beyond the four corners of
the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a
court may consider certain narrowly defined types of material without converting the motion to
dismiss [to one for summary judgment pursuant to Rule 56].” In re Rockefeller Ctr. Props. Sec.
Litig., 184 F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral
to or explicitly relied upon in the complaint.” In re Burlington Coat Factory, 114 F.3d at 1426
(emphasis added) (quoting Shaw, 82 F.3d at 1220). However, “[w]hen the truth of facts in an
‘integral’ document are contested by the well-pleaded facts of a complaint, the facts in the
complaint must prevail.” Princeton Univ., 30 F.4th at 342.
III.
DECISION
A.
Issue Preclusion
The Duane Morris Defendants argue both types of res judicata—issue preclusion and claim
preclusion—should be applied to dismiss Count II of the Second Amendment Complaint since this
claim was found to be barred in this Court’s prior decision without leave to amend. (ECF No. 81
at 17 (citing ECF No. 71 at 21–22)). The Court need only consider issue preclusion as this will
resolve multiple Counts, including Count II. Moreover, as this Court has previously done, it will
consider the Prior DNJ Action for purposes of the issue preclusion as well as its own opinion. 5
5
See ECF No. 71 at 11–17 for the previous discussion of issue preclusion for Counts raised in the
First Amended Complaint.
9
The Duane Morris Defendants argue issue preclusion applies to Count II because, although
Plaintiff’s claim is being presented differently here, it is based upon the same operative facts that
were already fully litigated in the Prior DNJ Action and dismissed with prejudice in this Court’s
prior opinion. (ECF No. 71 at 21–22.) Plaintiff argues issue preclusion should not apply to her
claims because “Judge Martinotti already ruled and allowed for corrections to be made in the
Second Amended Complaint.” (ECF No. 83 at 14.) Plaintiff further states, “Corrections were
made as advised in the Orders.” (Id.)
Issue preclusion, also known as collateral estoppel, is a doctrine which bars parties from
re-litigating an issue determined by a “final and valid” judgment in any future lawsuit. United
States v. Rigas, 605 F.3d 194, 217 (3d Cir. 2010). Courts assess five factors to determine if issue
preclusion bars a claim in a new litigation:
(1) the identical issue was decided in a prior adjudication; (2) the
issue was actually litigated; (3) there was a final judgment on the
merits; (4) the determination was essential to the earlier judgment;
and (5) the party against whom the doctrine is asserted was a party
or in privity with a party to the earlier proceeding.
Fitzgerald v. Shore Mem’l Hosp., 92 F. Supp. 3d 214, 225–26 (D.N.J. 2015). When determining
whether an issue is identical between litigations, the issues must be “in substance the same.”
Pasqua v. Cnty. of Hunterdon, Civ. A. No. 15-3501, 2017 WL 5667999, at *15 (D.N.J. Nov. 27,
2017). In assessing similarity, courts consider “whether there is substantial overlap of evidence or
argument in the second proceeding; whether the evidence involves application of the same rule of
law; whether discovery in the first proceeding could have encompassed discovery in the second;
and whether the claims asserted in the two actions are closely related.” Strassman v. Essential
Images, Civ. A. No. 17-4227, 2018 WL 1251636, at *5–6 (D.N.J. Mar. 12, 2018) (quoting First
Union Nat’l Bank v. Penn Salem Marina, Inc., 921 A.2d 417, 424 (N.J. 2007)).
10
For the same reasoning as this Court’s previous opinion, Count II of Plaintiff’s Second
Amended Complaint is dismissed for issue preclusion as the allegation is still barred by the
adjudication of the Prior DNJ Action. (ECF No. 71 at 13–16.)
In addition, Count I of Plaintiff’s Second Amended Complaint, to the extent it alleges a
violation of 15 U.S.C. § 1692(g) by Fialkoff, is dismissed for issue preclusion as such is similarly
barred by the adjudication of the Prior DNJ Action. (Id.)
Accordingly, the Duane Morris Defendants’ Motion to Dismiss Counts I and II is
GRANTED.
B.
Sufficiency of Pleading
The Duane Morris Defendants and Parker Ibrahim Defendants argue all of Plaintiff’s
claims should be dismissed for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Although Count I of the Second Amended Complaint has already been dismissed based
on issue preclusion, see supra Section III.A., the Court will still address it given Plaintiff’s pro se
status, and will address each Count (other than Count II) in turn.
1.
Count I (FDCPA Claim Against Fialkoff)
The Duane Morris Defendants argue Count I should be dismissed because the violation is
barred by the statute of limitations and does not relate back under Rule 15 of the Federal Rules of
Civil Procedure, and because it fails to plead a prima facie case under the FDCPA. (ECF No. 81
at 12.) Plaintiff argues the violation is not time-barred by the one-year statute of limitations because
the First Amended Complaint was filed within the one-year limitation, and that her claim has been
adequately pled because she detailed the misleading promise made by Fialkoff. (ECF No. 78 at 8–
16, 83 at 12–14.) Plaintiff further states Fialkoff’s promise was a material misrepresentation that
was relied upon, and she sufficiently stated a claim under the FDCPA because “[a]ll three elements
11
of the FDCPA law have been met.” (ECF No. 78 at 5, 8.) The Duane Morris Defendants argue in
the alternative that Count I of the Second Amended Complaint should be dismissed because the
phone conversation and promise on which the Count is premised was not an attempt to collect a
debt. (ECF No. 81 at 13–16).
In general,
[t]o prevail on an FDCPA claim, a plaintiff must prove that (1) she
is a consumer, (2) the defendant is a debt collector, (3) the
defendant’s challenged practice involves an attempt to collect a
‘debt’ as the [FDCPA] defines it, and (4) the defendant has violated
a provision of the FDCPA in attempting to collect the debt.
Tobing v. Parker McCay, P.A., Civ. A. No. 17-00474, 2018 WL 2002799, at *11 (quoting
Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)). The FDCPA defines a
debt collector to be “any person who uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or
due another.” 15 U.S.C. § 1692a(6). The FDCPA also defines a consumer to be “any natural person
obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3).
a. Statute of Limitations and Relation Back
A private action under the FDCPA must be filed “within one year from the date on which
the violation occurs.” 15 U.S.C. § 1692k(d). The date of the violation starts the running of the
statute of limitations. Rotkiske v. Klemm, 589 U.S. at 8, 13 (2019).
Rule 15(c) of the Federal Rules of Civil Procedure allows for an amendment to a pleading
to relate back to the date of the original pleading when “the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Application of Rule 15(c)(1)(B) normally entails a
12
“search for a common core of operative facts in the two pleadings.” Bensel v. Allied Pilots Ass’n,
387 F.3d 298, 310 (3d Cir.2004). Additionally, when an amended pleading changes a party,
“relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have
known, not on the amending party’s knowledge or its timeliness in seeking to amend the pleading.”
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010).
The Duane Morris Defendants argue that, because Fialkoff was not named in the Original
Complaint, the Second Amended Complaint cannot relate back. (ECF No. 81 at 13.) However, this
Court finds the conduct now being alleged against Fialkoff does relate back, and the statute of
limitations does not bar the claim. In the Original Complaint, Plaintiff details making numerous
phone calls to SPS with regards to her dispute of the debt and claims of mortgage fraud. (ECF No.
1 at 10, 17.) In the Second Amended Complaint, Plaintiff states she relied on “the information
from Ms. Fialkoff, believing the corrections [she] demanded for all the disputed items, identified
in the Debt Collector Notice, would be corrected immediately by SPS and Legacy Mortgage Asset
Trust.” (ECF No. 78 at 9.) Accordingly, this connection is enough for the claim now being brought
to relate back, and, given the First Amended Complaint, Fialkoff reasonably can be said to have
known or should have known that such a claim could be brought against her. See, e.g., Krupski,
560 at 541; see also Reeves v. Cnty. of Bergen, Civ. A. No. 18-14061 2023 WL 8520742 (D.N.J.
Dec. 8, 2023) (relation back allowed because plaintiff’s initial complaint was filed pro se and
nothing in the record indicated he knew or should have known the identity of defendant when New
Jersey discovery rule to toll statute of limitations was applied).
b. Sufficiency of Pleading
Plaintiff’s pleading fails because she does not identify a specific provision of the FDCPA
Fialkoff is alleged to have violated. This deficiency is the same one that plagued Plaintiff’s First
13
Amended Complaint. 6 (See ECF No. 71 at 23.) Rather, Plaintiff generally cites to 15 U.S.C. §
16927 by titling Count I as “Kassia Falkoff, esq., Violated the FDCPA 15 U.S.C. 1692.” (ECF No.
78 at 8.) Violations of statutes mentioned in “passing,” or merely referenced in the complaint
without factual support, are not sufficient to raise a claim. Alexis v. Sessions, Civ. A. No. 18-2099,
2018 WL 5077899, at *2 n.1 (D.N.J. Oct. 18, 2018). Moreover, it is “not the court’s responsibility
to research the law and construct the parties’ arguments for them.” Joe Hand Promotions, Inc. v.
Yakubets, 3 F. Supp. 3d 261, 271 (E.D. Pa. 2014) (citing Econ. Folding Box Corp. v. Anchor
Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008)). Indeed, the “declaration of purpose”
contained in 15 U.S.C. § 1692 does not function as a legal requirement for creditors. Therefore,
Plaintiff has not identified a specific provision of the FDCPA that Fialkoff allegedly violated.
Nonetheless, despite Plaintiff’s inartful pleading of the relevant statutory section, the Court
will consider the merits of Count II due to Plaintiff’s pro se status, which entitles her pleading to
liberal construction. Woods v. Murphy, Civ. A. No. 22-4284, 2023 WL 2784408, at *2 (D.N.J.
Mar. 31, 2023) (quoting Higgs v. Att’y Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (“The
obligation to liberally construe a pro se litigant’s pleadings is well-established.”); Walker v. Met.
Tower Life Ins. Co., Civ. A. No. 15-240, 2016 WL 844838, at *2 (D.N.J. Mar. 4, 2016) (“In a case
brought pro se such as this one, the Court must construe the complaint liberally in favor of the
6
In this Court’s prior opinion, it was Count II against Messinger where Plaintiff did not identify a
provision of the FDCPA that had been violated.
7
Section 1692 of U.S.C. Title 15 is titled “Congressional findings and declaration of purpose” and
contains a list of the purposes of the FDCPA, such as “to eliminate abusive debt collection
practices by debt collectors, to insure [sic] that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
actions to protect consumers against debt collection abuses.”
14
plaintiff.”); Sanchez v. Poag, Civ. A. No. 11-3824, 2016 WL 1134536, at *2 (D.N.J. Mar. 22,
2016) (same).
Here, it appears Plaintiff is attempting to state a claim based on 15 U.S.C. § 1692e(10),
which forbids the “use of any false representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a consumer.” Plaintiff has adequately alleged
Fialkoff was a debt collector given Duane Morris’s status as a debt collector, 8 since she claims
Duane Morris was attempting to collect her mortgage debt on behalf of LMAT, and has also
adequately alleged she was a consumer, since she alleges she was the target of debt collection
efforts regarding mortgage debt she purportedly owed. (ECF No. 78 at 3–6.)
However, Plaintiff fails to allege an attempt to collect a debt by Fialkoff. Plaintiff states
Fialkoff violated the FDCPA during a phone conversation with the Plaintiff and that Fialkoff
provided “false, deceptive and misleading information and material misrepresentation of critical,
material information in connection with the collection of the alleged debt.” (Id. at 8.) Plaintiff goes
on to detail her reliance on the promise Fialkoff allegedly made regarding corrections to disputed
items, yet Plaintiff has not demonstrated what action Fialkoff took in order to collect on the debt.
(Id. at 8–13.) Indeed, the Plaintiff herself made this call to the Defendant to refute debt amounts
and, beyond an unfounded conclusory allegation of conspiracy between Fialkoff and Messinger,
she has not alleged Fialkoff did anything except purportedly lie on the phone. (Id.)
Accordingly, the Duane Morris Defendants’ Motion to Dismiss Count I is GRANTED
based on issue preclusion and for failure to sufficiently plead a violation by Fialkoff.
8
ECF No. 40, Exhibit 1 shows Duane Morris calling themselves a debt collector.
15
2.
Count III (FDCPA Claim Against Messinger)
The Duane Morris Defendants argue Count III should be dismissed because Plaintiff has
once again failed to allege a material misrepresentation by Messinger. (ECF No. 81 at 24). Plaintiff
claims she adequately alleged fraud against Messinger, relying on the certified mail envelope and
letter addressing the Plaintiff as “Tenant.” (ECF No. 78 at 22–23.)
For the same reasons as in this Court’s previous opinion, 9 Count III is deficient. In the
Second Amended Complaint, Plaintiff fails to provide any new information beyond what was
alleged in the First Amended Complaint. Just as before, Plaintiff relies on the letter sent by
Messinger, which addresses her as “Tenant,” in asserting her cause of action. (ECF No. 78 at 22–
23.) Although she provides more details regarding the letter and the damages she claims to have
incurred due to the alleged reliance, she still fails to demonstrate how being called a “Tenant” is a
material misrepresentation she reasonably relied upon in relation to her decision making regarding
the mortgage debt.
Accordingly, the Duane Morris Defendants’ Motion to Dismiss Count III is GRANTED.
3.
Count IV (FDCPA Claim and Conspiracy to Commit Mortgage Servicing
Fraud and Mortgage Fraud Against Parker Ibrahim Defendants)
a. FDCPA Claim
The Parker Ibrahim Defendants argue Count IV’s alleged FDCPA violation should be
dismissed because: (1) Plaintiff has again failed to adequately state they are debt collectors under
the FDCPA; (2) there is no claim the mortgage loan was in default when SPS became the mortgage
9
This Court’s previous opinion provides a thorough analysis as to why the FDCPA Claim against
Messinger (Count II of the First Amended Complaint) was dismissed without prejudice and with
leave to amend. (ECF No. 71 at 22–25). In short, Plaintiff failed to identify any provision of the
FDCPA Messinger had violated, and, to the extent Plaintiff was attempting to state a claim based
on 15 U.S.C. § 1692e(10), she failed to allege a material misrepresentation that could have
influenced her decision-making regarding the mortgage debt. (Id.)
16
servicer; (3) there is no specific provision of the FDCPA in the cause of action; and (4) the claim
is time-barred by the one-year statute of limitations. (ECF No. 82 at 14–16.) Plaintiff’s position is
her pleadings in the Second Amended Complaint are “clear, logical, well-organized,
comprehensive, and include material facts and exhibits proving beyond a reasonable doubt the
Defendants . . . violated the FDCPA.” (ECF No. 83 at 16.)
For the same reasons as this Court’s previous opinion, 10 Count IV is deficient as to the
FDCPA claim. In the Second Amended Complaint, Plaintiff has not provided any new information
beyond what was alleged in the First Amended Complaint. Instead, Plaintiff continues to state the
same conclusions as before. Indeed, Plaintiff has not corrected any of the deficiencies the prior
opinion detailed regarding whether the Parker Ibrahim Defendants are debt collectors and were
engaged in any action related to the mortgage debt, nor has she clarified whether the mortgage
loan was in default when SPS became the mortgage servicer. Rather, she created a new
insufficiency in her Second Amended Complaint by removing the reference to a specific provision
of the FDCPA from her cause of action.
As such, the Parker Ibrahim Defendants’ Motion to Dismiss the FDCPA claim in Count
IV is GRANTED.
b. Conspiracy to Commit Mortgage Servicing Fraud and Mortgage Fraud
The Parker Ibrahim Defendants argue Count IV’s claim of Conspiracy to Commit
Mortgage Servicing Fraud and Mortgage Fraud should be dismissed because Plaintiff failed to
10
This Court’s previous opinion provides a thorough analysis as to why the FDCPA Claim against
the Parker Ibrahim Defendants (Count V of the First Amended Complaint) was dismissed without
prejudice and with leave to amend. (ECF No. 76 at 18–19). In sum, Plaintiff failed to allege the
Parker Ibrahim Defendants were debt collectors under the statute and did not allege they were
regularly engaged in debt collection or even that they were engaged in any litigation against her to
collect the mortgage debt. (Id. at 19.)
17
plead the required elements of common law fraud in New Jersey when relying on the August 25,
2020 email. (ECF No. 82 at 21.) Specifically, the Parker Ibrahim Defendants state again that
Plaintiff has not attributed any statement or material misrepresentation to them under this Count.
(Id.) Likewise, the Parker Ibrahim Defendants also contend Plaintiff’s reliance upon the August
17, 2021 conversation with SPS is deficient. (Id. at 23–26.) Plaintiff argues the Parker Ibrahim
Defendants “acted in concert and crafted a false email with a threat . . . in connection with the
collection of the alleged mortgage loan debt.” (ECF No. 78 at 28–29.) Plaintiff also states the
Parker Ibrahim Defendants conspired to commit mortgage fraud as they gave instructions for her
mortgage payments to be placed in an SPS suspense account entitled “Unapplied.” (Id. at 31–34.)
She emphasizes in her opposition that she adequately provided the “who, what, when, where and
how” of the heightened pleading standard for a fraud claim in the Second Amended Complaint.
(ECF No. 83 at 16.)
To the extent Plaintiff has alleged both fraud and civil conspiracy, her pleading must
conform to the requirements for these claims. To adequately state a claim for fraud under New
Jersey law, a plaintiff must allege: “(1) a material misrepresentation of a presently existing or past
fact; (2) knowledge or belief by the defendant of its falsity; (3) intention that the other person rely
on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Schiano v.
MBNA, Civ. A. No. 5-1171, 2016 WL 4009821, at *3 (D.N.J. July 25, 2016) (quoting Gennari v.
Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997)). Federal Rule of Civil Procedure 9(b) also
imposes a heightened pleading standard for fraud-based claims, requiring that “a party must state
with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b); Powell v.
Subaru of Am., 502 F. Supp. 3d 856, 887 (D.N.J. 2020). The heightened standard functions
independently of, and in addition to, Federal Rule of Civil Procedure 12(b)(6). Id. (quoting Cal.
18
Pub. Emps.’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 144 (3d Cir. 2004)). “Rule 9(b) does not
‘requir[e] every material detail of the fraud, such as date, location, and time’ but ‘plaintiffs must
use alternative means of injecting precision and some measure of substantiation into their
allegations of fraud.’” Powell, 502 F. Supp. 3d at 887 (quoting Rockefeller, 311 F.3d at 216).
Ultimately, the heightened pleading standard is designed to ensure “notice of the ‘precise
misconduct’ with which defendants are charged and to prevent false or unsubstantiated charges.”
Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 497 (D.N.J. 2014)
(quoting Rolo v. City Investing Co. Liquidating Tr., 155 F.3d 644, 658 (3d Cir. 1998)).
To properly plead a conspiracy claim under New Jersey law, a plaintiff must allege “(1) a
combination of two or more persons; (2) a real agreement or confederation with a common design;
(3) the existence of an unlawful purpose, or of a lawful purpose to be achieved by unlawful means;
and (4) proof of special damages.” Fed. Nat’l Mortg. Ass’n v. DuBois, Civ. A. No. 15-3787, 2018
WL 5617566, at *13 (D.N.J. Oct. 30, 2018) (quoting MaxLite, Inc. v. ATG Elecs., Inc., 193 F.
Supp. 3d 371, 390 (D.N.J. 2016)).
Here, the Court again finds Plaintiff offers conclusory statements regarding the existence
of the conspiracy, such as: “[T]his is a point in time where all the lawyers conspire to more severely
harass and torment the plaintiff” (ECF No. 78 at 7); “They conspired together and acted in concert
using materially False information and material misrepresentations in connection with the
collection of Plaintiff’s alleged mortgage loan debt” (id. at 30); “Defendants Mitchell Scott Kurtz
and Robert D. Bailey acted in concert together conspiring to intimidate, harass, torment and
defraud the Plaintiff in a fraudulent scheme they created in order to defraud the Plaintiff and coerce
her to drop the federal lawsuit against Select Portfolio Servicing” (id. at 31); and “Kurtz and Bailey
conspired together with an agreement designed to defraud the Plaintiff by putting illegal
19
instructions on the Plaintiff’s mortgage account for SPS and its representatives to divert the
Plaintiff’s monthly payments to a suspense type account labeled ‘UNAPPLIED’ on the Mortgage
statement” (id. at 34).
Plaintiff does not provide sufficient detail of the circumstances or content of any agreement
between the Defendants. Plaintiff’s failure to specifically allege “a real agreement or confederation
with a common design” warrants dismissal of her claim. Fed. Nat’l Mortg. Ass’n, 2018 WL
5617566, at *13; see also Cagno v. Ivery, Civ. A. No. 19-20384, 2023 WL 6212023, at *6–7
(D.N.J. Sept. 25, 2023) (finding claims of shared customs or policies among defendants did not
sufficiently allege an agreement between the defendants); Iwanicki v. Bay State Mill Co., Civ. A.
No. 11–01792, 2011 WL 6131956, at *8 (D.N.J. Dec. 7, 2011) (dismissing civil conspiracy claim
because Plaintiff did not allege “any facts suggesting that one or more of the Defendants entered
into an agreement to commit an unlawful act or engaged in any discussions that could be construed
as an agreement”). Plaintiff attempts to provide more context to her conclusions regarding the
alleged conspiracy in this Second Amended Complaint by giving details stemming from her
private investigation and phone call with SPS. (ECF No. 78 at 31–35.) While these allegations
move the Second Amended Complaint in the right direction, Plaintiff still makes declarations that
a conspiracy has occurred based only on her stated facts, rather than demonstrating the content of
such an agreement. Moreover, even if Plaintiff had made nonconclusory allegations about the
formation of a conspiracy, she still failed to demonstrate an unlawful purpose by the Parker
Ibrahim Defendants existed. Simply, Plaintiff continues to repeat there were unlawful acts and
harassment undertaken by the Parker Ibrahim Defendants in relation to the alleged mortgage debt,
without attributing specific actions or conduct to the Parker Ibrahim Defendants beyond the
“UNAPPLIED” instruction. (Id.)
20
Additionally, Plaintiff’s fraud claim fails because she has not alleged the Parker Ibrahim
Defendants made a material misrepresentation of a present or existing fact. As the Parker Ibrahim
Defendants argue, even accepting as true the allegation they instructed SPS to divert Plaintiff’s
monthly mortgage payments, this is not a material misrepresentation made to anyone. (ECF No.
82 at 24–25). See Barows v. Chase Manhattan Mortg. Corp., 465 F. Supp. 2d 347, 366–67 (D.N.J.
2006) (quoting Banco Popular N. Am. v. Gandi, 876 A.2d 253, 261 (N.J. 2005)
(“Misrepresentation and reliance are the hallmarks of any fraud claim, and a fraud cause of action
fails without them.”); Robinson v. Wingate Inns Int’l, Inc., Civ. A. No. 13-2468, 2015 WL
4064654, at *3 (D.N.J. June 30, 2015) (dismissing plaintiff’s fraud allegation for failure to allege
“a misrepresentation of a presently existing or past fact”). Beyond this deficiency, Plaintiff only
states how Credit Reporting Agencies acted in reliance on the Parker Ibrahim Defendants’ actions,
which damaged her, and not of her own reliance on the alleged misrepresentation. (ECF No. 78 at
33–34). See Petit-Clair v. Att’y Gen. for New Jersey, 730 F. App’x 120, 123–24 (3d Cir. 2018)
(“’[A] plaintiff must prove that he or she was an intended recipient of the defendant's
misrepresentations and that the plaintiff relied upon those misrepresentations.”) (quoting Port
Liberte Homeowners Ass’n, Inc. v. Sordoni Constr. Co., 924 A.2d 592, 601 (App. Div. 2007)).
Likewise, Plaintiff does not provide enough specificity to meet the heightened pleading
requirements of fraud. A statement that the Parker Ibrahim Defendants “somehow, were able to
design the scheme to have these fraudulent instructions programmed to divert payments via the
SPS processing systems” (ECF No. 78 at 35) does not facially provide this Court with an
appropriate “how,” as the heightened pleading standard is designed to ensure “notice of the
‘precise misconduct’ with which defendants are charged and to prevent false or unsubstantiated
charges.” Rapid Models & Prototypes, Inc., 71 F. Supp. 3d at 497 (emphasis added) (quoting Rolo,
21
155 F.3d at 658). Similarly, Plaintiff only states there was “a false email with a threat” and it was
“purported . . . to be from the Plaintiff.” (ECF No. 78 at 28.) Such conclusions, without more detail,
do not offer enough specificity, especially since Plaintiff relies on this email but does not provide
information about what the email said beyond claiming it to be false. 11 Instead, Plaintiff has
submitted ECF No. 57, a letter by the Sussex County Prosecutor, in connection to this specific
fraud to try and support her claim.
Accordingly, the Parker Ibrahim Defendants’ Motion to Dismiss Count IV is GRANTED.
4.
Count V (Home Foreclosure Fraud Claim and Perjury Against Messinger)
The Duane Morris Defendants argue Count V should be dismissed because Plaintiff has
failed to claim any material misrepresentation was made to her, only to the New Jersey Superior
Court. (ECF No. 81 at 26.) They further contend Plaintiff fails to allege reliance on this claimed
misrepresentation, and Plaintiff kept the perjury allegation in the Second Amended Complaint
despite this Court having stated there is no private right of action. 12 (Id. at 25–26.) Plaintiff’s only
11
Even if Plaintiff desired to remedy this deficiency of the Complaint in an opposition to the
motion to dismiss, it would not be allowed. See Frederico v. Home Depot, 507 F.3d 188, 201–02
(3d Cir. 2007) (noting that courts “do not consider after-the-fact allegations in determining the
sufficiency of [a] complaint under Rules 9(b) and 12(b)(6)”); Marino v. Westfield Bd. of Educ.,
Civ. A. No. 16-00361, 2017 WL 216691, at *7 (D.N.J. Jan. 18, 2017) (“Plaintiff raises several new
facts in its brief that purport to establish actual malice, but these new facts can have no place in
the Court's 12(b)(6) analysis.”); Pue v. N.J. Dep’t of Labor, Civ. A. No. 23-855, 2023 WL
5671561, at *4 n. 8 (D.N.J. Sept. 1, 2023) (“While the Court construes Plaintiff’s Amended
Complaint liberally, the Court cannot consider new facts presented for the first time in
opposition.”).
12
In this Court’s prior opinion (ECF No. 71 at 29), it noted it is well established “[t]here is no
private right of action under either the federal or the New Jersey perjury statutes,” and Plaintiff
cannot bring such a claim. Taylor v. Jackson, Civ. A. No. 19-16815, 2019 WL 5569070, at *3
(quoting Ali v. Person, 904 F. Supp. 375, 377 n.1 (D.N.J. 1995)).
22
response is “The Home Foreclosure Fraud Claim stands on its own!” yet she acknowledges that
“there is no Private Right of Action for a perjury claim.” (ECF No. 83 at 20.)
The Court finds Plaintiff has not adequately stated a claim for fraud against Messinger for
many of the same reasons as the Court’s prior opinion. Just as before, Plaintiff has failed to plead
the third and fourth elements of a fraud claim. Plaintiff has failed to allege she relied on
Messinger’s assertion in the Foreclosure Case Information Statement that there were no related
pending cases to the Foreclosure Action, nor has she made any statement regarding Messinger’s
intention for her to do so. Therefore, because Plaintiff has not alleged reliance on Messinger’s
representation, her fraud claim under Count V is insufficiently pled. See Vaughan v. Fein, Such,
Kahn & Shepard, P.C., Civ. A. No. 21-16013, 2022 WL 2289560, at *5 (D.N.J. June 24, 2022)
(finding general allegations of plaintiff’s confusion and inability to evaluate options to be
insufficient to plead reliance under common-law fraud). To the extent the fifth element of damages
is now adequately alleged13 by Plaintiff’s statement that she accepted a “significant price
reductions of over $75,000.00 to WIN THE RACE against the Fraudsters,” such a determination
does not cure the other fatal deficiencies of this claim in the Second Amended Complaint. (ECF
No. 78 at 40.)
Accordingly, the Duane Morris Defendants’ Motion to Dismiss Count V is GRANTED.
5.
Count VI (Mortgage Servicing Fraud Claim Against Messinger and SPS)
The Duane Morris Defendants argue Count VI should be dismissed because Plaintiff’s
cause of action demonstrates awareness of the alleged falsity and therefore could not be something
that was reasonably relied upon. (ECF No. 81 at 27–28.) Plaintiff responds that her cause of action
13
In the First Amended Complaint, Plaintiff did not provide any number for potential damages as
related to this specific cause of action. (ECF No. 40 at 10–11; ECF No. 71 at 20.)
23
in the Second Amended Complaint has sufficient particularity to pass the heightened pleading
standards required of fraud. (ECF No. 83 at 21.)
The Court finds Plaintiff has not adequately stated a claim for fraud against Messinger and
SPS. Just as in Count V, Plaintiff has failed to plead the third and fourth elements of a fraud claim.
Plaintiff failed to allege she reasonably relied on the Mortgage Loan Payoff statement. Although
she states her lawyer “relied on the false fraudulent numbers in the Mortgage Loan payoff
statement,” she also claims she had disputed such information “for over 3 years.” (ECF No. 78 at
42.) Plaintiff further details she “disputed the fraudulent numbers but had no choice but to pay the
Total Payoff amount in order to close on the sale of the home.” (Id. at 43.) Simply, Plaintiff could
not have relied upon the alleged false numbers in the Mortgage Loan Payoff statement and
provided such information to her attorney with a genuine belief in them while also claiming she
disputed the very same information for years. See Kennedy v. Am. Airlines Inc., 760 F. App’x 136,
141 (3d Cir. 2019) (“Thus, Kennedy simply cannot allege that he relied on Appellee's false
representations or acquiesced to their demands when, according to Kennedy himself, he was not
intoxicated, and he therefore knew any representation to the contrary to be false.”) (citing Jacked
Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 811 (5th Cir. 2017) (noting a party cannot reasonably
rely on a representation if that party knows the representation to be false)); Fogarty v. Household
Fin. Corp. III, No. Civ. A 14-4525, 2015 WL 852071, at *10 (D.N.J. Feb. 25, 2015) (“Perhaps
more fatal to Plaintiff’s claim is the fact that she cannot plausibly claim that she reasonably relied
to her detriment on Household's representations . . . her Amended Complaint is replete with
examples of her protestations of the existence of the 2003 Mortgage, and her unwillingness to
accept Household’s determination that the 2003 Mortgage was not obtained fraudulently.”); see
also Restatement (Second) of Torts § 541 (1977) (“The recipient of a fraudulent misrepresentation
24
is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.”).
Therefore, because Plaintiff has not alleged reliance on Messinger’s and SPS’s representations,
her fraud claim under Count VI is insufficiently pled.
Accordingly, the Duane Morris Defendants’ Motion to Dismiss Count V is GRANTED.
C.
Leave to Amend and Enjoinment from Future Action
For the same reasons as their previous Motion to Dismiss, the Parker Ibrahim Defendants
argue Plaintiff should not be given another opportunity to amend her complaint, as any further
amendment would be futile. (ECF No. 83 at 3.) The Parker Ibrahim Defendants also argue they
would be significantly and unfairly prejudiced by having to continue to defend themselves against
Plaintiff’s claims. (Id. at 3, 30.) The Parker Ibrahim Defendants further request Plaintiff be
permanently enjoined from filing further lawsuits against them without leave from the Court. (Id.
at 3–4, 30–31.) They assert Plaintiff should be found to be a vexatious litigant under the All Writs
Act because she has no reasonable or good faith basis to believe she can prevail in this suit, given
that the suit is duplicative of her previous dismissed actions and complaints. (Id. at 32.) Therefore,
the Parker Ibrahim Defendants argue any future lawsuit would be harassing and duplicative. (Id.)
This Court previously granted Plaintiff leave to amend her Complaint against the Parker
Ibrahim Defendants because it was not futile for Plaintiff to attempt to correct the identified
deficiencies for the non-precluded counts, and there was no apparent equitable reason to deny
leave to amend. (ECF No. 76 at 21.) However, while this Court showed leniency before given
Plaintiff’s pro se status, it also held “Plaintiff’s pleading against the Parker Ibrahim Defendants
was severely deficient” in the First Amended Complaint and warned Plaintiff “that this will be her
final opportunity to state a claim against these defendants.” (Id. at 22.) The Court was “mindful of
the time and effort it has taken the Parker Ibrahim Defendants to respond to Plaintiff’s allegations”
25
and stated it “will not grant Plaintiff unlimited opportunities to state viable claims, particularly
where Plaintiff does not, in some cases, make any substantive allegations against the Defendants
she has named.” (Id.) This remains true after the Second Amended Complaint.
Accordingly, the Court finds amendment would be futile, and all claims are dismissed with
prejudice. Defendants’ arguments in support of enjoining Plaintiff from filing are duly noted, but
the Court declines to do so. Plaintiff has tried to change her pleadings or provide more details when
this Court presented her with such opportunity. Since the Court does not find Plaintiff acted in bad
faith, despite her failure to adequately amend her causes of action, an injunction is not warranted.
IV.
CONCLUSION
For the reasons set forth above, the Duane Morris Defendants’ Motion to Dismiss (ECF
No. 81) and the Parker Ibrahim Defendants’ Motion to Dismiss (ECF No. 82) Plaintiff’s Second
Amended Complaint (ECF No. 78) is GRANTED. The Second Amended Complaint (ECF No.
78) is DISMISSED WITH PREJUDICE. An appropriate order follows.
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
Dated: October 22, 2024
26
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