Gonzalez v. J.P. Morgan Chase Bank. N.A. et al

Filing 50

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the Clerk is directed to strike Dkts. 47-48. To the extent that the defendants' letter could be construed as a motion seeking to dismiss this action with prejudice, that motion is denied. The plaintiff's time to file a second amended complaint is extended to February 27, 2017. If the plaintiff fails to file a second amended complaint by that date, the action will be dismissed with prejudice. Any pleadings must comply with the Fed eral Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of New York, and this Court's Orders. So long as the plaintiff is represented by counsel, any pleadings on behalf of the plaintiff will not be accepted unless they are filed with the Court by plaintiff's counsel. The parties are also reminded about the importance of considering a transfer of this action to the United States District Court for the Central District of California, where the property at issue is located. See id. at *12-13. The Clerk is directed to close all open motions. (As further set forth in this Order.) (Amended Pleadings due by 2/27/2017.) (Signed by Judge John G. Koeltl on 2/10/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
GONZALEZ,

16-cv-02611 (JGK)
Plaintiff,

MEMORANDUM OPINION AND
ORDER

- against J.P. MORGAN CHASE BANK. N.A. ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
In a Memorandum Opinion and Order dated January 11, 2017,
this Court dismissed the Amended Complaint. See Gonzalez v. J.P.
Morgan Chase Bank, N.A., No. 16-CV-02611 (JGK), 2017 WL 122993
(S.D.N.Y. Jan. 12, 2017). As stated in the Memorandum Opinion
and Order, “The claims for money damages for violations of the
TILA, rescission under the TILA, and specific performance [were]
dismissed with prejudice. The claims for declaratory relief,
constructive fraud, and slander of title [were] dismissed
without prejudice.” Id. at *13. The plaintiff was given leave to
file a second amended complaint by February 3, 2017. Id. As
noted in the Memorandum Opinion and Order, the plaintiff had
retained counsel during the pendency of the litigation, and thus
should be given “the opportunity to amend the Amended Complaint
consistent with this opinion to assert against the defendants

any potentially meritorious claim, so long as the claim has a
good faith basis in fact and in law.” Id. at *12.
On February 3, 2017, the plaintiff filed a pro se second
amended complaint, and a supporting declaration. See Dkts. 4748. On February 9, 2017, the Court received a letter from the
defendants asking the Court to dismiss the action with
prejudice. See Dkt. 49.
The plaintiff is currently represented by counsel, and thus
all papers should be filed by counsel. Counsel cannot withdraw
from the proceeding without permission from the Court. See
Estate of Larry Shaw & Susan Shaw v. Marcus, No. 14-CV-3849
(NSR), 2016 WL 4679734, at *1 (S.D.N.Y. Sept. 6, 2016)
(discussing Local Civil Rule 1.4 of the United States District
Courts for the Southern and Eastern Districts of New York).
Because the plaintiff is represented by counsel, the plaintiff
is no longer acting pro se. Rule 11 of the Federal Rules of
Civil Procedure requires that, “Every pleading, written motion,
and other paper must be signed by at least one attorney of
record . . . . The court must strike an unsigned paper unless
the omission is promptly corrected after being called to the
attorney’s or party’s attention.” Counsel has not signed the
pleadings.
Moreover, pursuant to its docket-managing authority, the
Court will not accept submissions from the plaintiff on a pro se

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basis, so long as he is represented by counsel. See United
States v. DiPietro, No. 02 CR. 1237 (SWK), 2007 WL 3130553, at
*1 (S.D.N.Y. Oct. 17, 2007); Mitchell v. Senkowski, 489 F. Supp.
2d 147, 149 (N.D.N.Y. 2006) (collecting cases).
Dkts. 47-48 accordingly must be stricken.
The defendants argue that the action should be dismissed
with prejudice, but there is no reason that the plaintiff’s
conduct should result in such a draconian result. The defendant
will suffer no prejudice if the plaintiff is given more time to
file a second amended complaint.
The defendants also fault the deficient second amended
complaint because it raises new causes of action other than
those pleaded in the Amended Complaint, and a claim pursuant to
the California Homebuyer Bill of Rights. The defendants argue
that the Memorandum Opinion and Order limited the second amended
complaint to pleading only those claims. That misreads the
Memorandum Opinion and Order, which gave the plaintiff “the
opportunity to amend the Amended Complaint consistent with [the
Memorandum Opinion and Order] to assert against the defendants
any potentially meritorious claim, so long as the claim has a
good faith basis in fact and in law.” Gonzalez, 2017 WL 122993,
at *12 (emphasis added) (citation omitted). The Memorandum
Opinion and Order does not contain the limiter the defendants
suggest. Rather, the claims dismissed with prejudice may not be

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repleaded. Otherwise, the plaintiff may plead any other
potentially meritorious claim, so long as the claim has a good
faith basis in fact and in law.1 See id.
For the foregoing reasons, the Clerk is directed to strike
Dkts. 47-48. To the extent that the defendants’ letter could be
construed as a motion seeking to dismiss this action with
prejudice, that motion is denied.
The plaintiff’s time to file a second amended complaint is
extended to February 27, 2017. If the plaintiff fails to file a
second amended complaint by that date, the action will be
dismissed with prejudice. Any pleadings must comply with the
Federal Rules of Civil Procedure, the Local Rules for the United
States District Court for the Southern District of New York, and
this Court’s Orders. So long as the plaintiff is represented by
counsel, any pleadings on behalf of the plaintiff will not be
accepted unless they are filed with the Court by plaintiff’s
counsel.
The parties are also reminded about the importance of
considering a transfer of this action to the United States
District Court for the Central District of California, where the
property at issue is located. See id. at *12-13.

1

This Memorandum Opinion and Order should not be construed as
commenting on the merits of the plaintiff’s claims as set forth
in the deficient second amended complaint, and whether those
claims would have a good faith basis in fact and in law.
4

The Clerk is directed to close all open motions.
SO ORDERED.
Dated:

New York, New York
February 10, 2017

____________/s/______________
John G. Koeltl
United States District Judge

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