BAGWELL v. DIMON et al
Filing
117
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 11/17/2015, RECOMMENDED that Plaintiff's Rule 59(e) Motion to Alter or Amend Judgment (Docket Entry 99 ) be denied. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONALD RICHARD BAGWELL,
Plaintiff,
v.
JAMIE DIMON, MARIANNE A.
LAKE, GRADY I. INGLE,
ELIZABETH B. ELLS, JONATHAN
BLAKE DAVIS, JAMES C.
STANFORD, COUNTY OF ORANGE,
STATE OF NORTH CAROLINA,
BARRY JACOBS, EARL MCKEE,
ALICE M. GORDON, BERNADETTE
PELISSIER, RENEE PRICE,
PENNY RICH, BRIAN CHARLES
HIATT, HEATHER HOVANEC FORD,
DAVID R. FORD, JACKSON D.
WICKER, NOAH H. HUFFSTETLER,
III, ROE(S) NO. 1–20, JANE
DOES NO. 1–49, JOHN DOES NO.
1–49, JP MORGAN CHASE & CO.,
JP MORGAN CHASE BANK, N.A.,
AND MARK DOROSIN,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1:14-CV-495
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge on Plaintiff’s Rule 59(e) Motion to Alter or Amend
Judgment (the “Motion”) (Docket Entry 99). (See Docket Entry dated
Oct. 8, 2015.)
For the reasons that follow, the Court should deny
Plaintiff’s Motion.
I. BACKGROUND
Plaintiff’s Motion seeks reconsideration of the Order and
Judgment entered by the Court (per United States District Judge
Loretta
C.
Biggs)
on
May
dismissing this action.
18,
2015
(Docket
Entries
97,
98),
In sum, the Order dismissed Plaintiff’s
only federal law claim, brought under the Federal Debt Collection
Practices Act, 15 U.S.C. § 1601 et. seq. (“FDCPA”), for lack of
subject matter jurisdiction to the extent it challenged Plaintiff’s
state court foreclosure proceeding, and for failing to state a
claim upon which relief could be granted.
(See Docket Entry 97.)
Declining to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims, the Court then dismissed the case.
(Docket Entries 97, 98.)
In response to the dismissal, Plaintiff filed the instant
Motion (Docket Entry 99), along with several requests for the Court
to take judicial notice of documents purportedly recorded in the
“Official Record of this Case and or in the Office of the REGISTER
OF DEEDS, ORANGE, COUNTY OF, Hillsborough, North Carolina” (Docket
Entry 101 at 6; Docket Entry 103 at 3; see Docket Entries 101-1,
101-2,
103-1,
103-2,
103-3,
103-4,
103-5),
in
Plaintiff’s
possession, or “[r]ecorded in the Office of the REGISTER OF DEEDS,
ALAMANCE COUNTY” (Docket Entry 102 at 3; see Docket Entries 102-1,
102-2).
Defendants responded in opposition (Docket Entries 104-
106) and Plaintiff replied (see Docket Entries 110-113).
2
II. MOTION FOR RECONSIDERATION
Plaintiff’s Motion asks the Court “for reconsideration in its
entirety and or to vacate its prior decisions” because “[n]ewly
available facts . . . warrant the Court’s reconsideration of [the]
Court’s [d]ecisions in light of these new facts,” or, “[i]n the
alternative, . . . Plaintiff . . . requires the Court to correct
its findings of facts and conclusions of law, order and judgment
removing all inaccuracies . . . so as to pave the way for an
orderly appeal.”
(Docket Entry 100 at 9-10.)
In support of the
Motion, Plaintiff asserts three arguments:
(1) Plaintiff filed a valid and enforceable “Affidavit of
Obligation, Claim Consensual Commercial Lein [sic]” (“Consensual
Commercial Lien”) against defendants Jamie Dimon, Marianne Lake,
and JPMorgan Chase & Co. (the “Chase Defendants”) in the Orange
County Register of Deeds, which makes them liable to Plaintiff for
$183,155,000.00 and qualifies them as “debt collectors” under the
FDCPA (id. at 4-5);
(2)
the
Court
impermissibly
considered
statements
and/or
arguments of counsel and adopted said statements and/or arguments
in its Order (id. at 6); and
(3) the Court should have considered the Second Amended
Complaint and erroneously determined that Plaintiff abandoned his
claim under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et.
3
seq. (“FCRA”) without issuing findings of fact and conclusions of
law (id. at 8).1
A. Legal Standard
The Court may grant a motion to alter or amend a final
judgment under Federal Rule of Civil Procedure 59(e) “(1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct
a clear error of law or prevent manifest injustice.”
Pacific Ins.
Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998); see also Madison River Mgmt. Co. v. Business Mgmt. Software
Corp., 402 F. Supp. 2d 617, 619 (M.D.N.C. 2005) (“A motion to
reconsider
is
appropriate
when
the
court
has
obviously
misapprehended a party’s position or the facts or applicable law,
or when the party produces new evidence that could not have been
obtained through the exercise of due diligence.”).
Nevertheless,
“[p]ublic policy favors an end to litigation and recognizes that
efficient operation requires the avoidance of re-arguing questions
that have already been decided.”
Akeva, LLC v. Adidas Am., Inc.,
1
In addition, Plaintiff alleges the Court made factual errors
by mischaracterizing Plaintiff as “pro se” instead of as “sui
juris” (Docket Entry 100 at 3), by mischaracterizing Plaintiff as
“Donald Richard Bagwell” instead of “Donald Richard: Bagwell”
(id.), by mischaracterizing Defendant “State of North Carolina”
instead
of
“STATE
OF,
NORTH
CAROLINA”
(id.),
and
by
mischaracterizing Defendant “Orange County” instead of “ORANGE,
COUNTY OF” (id.).
Plaintiff has not shown that these alleged
mischaracterizations provide grounds for amending or altering the
Order and Judgment.
4
385 F. Supp. 2d 559, 565 (M.D.N.C. 2005).
To this end, “Rule 59(e)
motions may not be used . . . to raise arguments which could have
been raised prior to the issuance of the judgment, nor may they be
used to argue a case under a novel legal theory that the party had
the ability to address in the first instance.”
148 F.3d at 403.
Pacific Ins. Co.,
In addition, a Rule 59(e) motion does not
authorize “a party to complete presenting his case after the court
has ruled against him.”
In re: Reese, 91 F.3d 37, 39 (7th Cir.
1996) (internal quotation marks omitted), cited with approval,
Pacific Ins. Co., 148 F.3d at 403.
B. Analysis
Plaintiff first contends that the Consensual Commercial Lien
he filed against the Chase Defendants establishes that they owe him
$183,155,000.00, making their foreclosure on his property improper.
(See Docket Entry 100 at 5.)
In other words, Plaintiff alleges the
Chase Defendants collected on a nonexistent debt, thus qualifying
them as “debt collectors” under the FDCPA.
(Id.)
On this basis,
Plaintiff contends that his FDCPA claim should have survived
dismissal.
(See id.)
Plaintiff
previously
raised
these
same
arguments
in
his
opposition to the Chase Defendants’ motion to dismiss. (See Docket
Entry 56 at 6-8.)
Further, Plaintiff executed the Consensual
Commercial Lien on March 28, 2013 (see Docket Entry 103-4 at 13)
and filed that document with this Court before the entry of the
5
Order and Judgment (see Docket Entry 75-5 (Plaintiff’s Affidavit
with
attached
exhibits
filed
on
Oct.
31,
2014)).
These
considerations defeat Plaintiff’s instant Motion under Pacific Ins.
Co., 148 F.3d at 403, and Akeva, LLC, 385 F. Supp. 2d at 566.
Nor does the Consensual Commercial Lien (even if valid) affect
whether the Chase Defendants qualify as “debt collectors” as the
FDCPA defines that term, see 15 U.S.C. § 1692a(6) (defining “debt
collector” as one who “regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or
due
another”).
The
Court
has
already
addressed
Plaintiff’s
argument that the Chase Defendants attempted to collect on a
nonexistent debt and held, “[w]here the holder of a debt attempts
to collect its own accounts, as Chase has done here, it is not a
debt
collector
under
the
FDCPA.”
(Docket
Entry
97
at
11.)
Plaintiff has presented no persuasive argument showing how the
Consensual Commercial Lien, or other documents as to which he
requests this Court take judicial notice, alters that outcome.2
2
Plaintiff requests the Court take judicial notice of
multiple documents that he previously filed in this case and that
existed before the Court entered its Order and Judgment. (Compare
Docket Entries 101-1, 103-1 (Notice of Dishonor executed on Oct. 7,
2014); Docket Entries 101-2, 103-2 (Notarial Notice of Dishonor
executed on Apr. 9, 2013); Docket Entry 103-3 (Witness of Criminal
Activity executed on Feb. 25, 2014); Docket Entry 103-4 (Consensual
Commercial Lien as to Chase Defendants executed on March 28, 2013);
and Docket Entry 103-5 at 1-12 (Consensual Commercial Lien as to
Grady I. Ingle, et al. executed on Jun. 25, 2013), with Docket
Entry 75-8 (Notice of Dishonor); Docket Entry 75-7 (Notarial Notice
of Dishonor); Docket Entry 75-11 (Witness of Criminal Activity);
Docket Entry 75-5 (Consensual Commercial Lien as to Chase
6
The Consensual Commercial Lien therefore does not qualify as “new
evidence” under Rule 59(e).
Supp.
2d
315,
317
See DirecTV, Inc. v. Hart, 366 F.
(E.D.N.C.
2004)
(ruling
that
a
motion
to
reconsider may not “merely ask[] the court ‘to rethink what the
[c]ourt had already thought through-rightly or wrongly’”) (quoting
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
Plaintiff’s
argument
that
the Consensual
Commercial
Lien
establishes his lack of indebtedness to the Chase Defendants
similarly
provides
no
basis
for
reconsideration.
The
Court
previously addressed this contention and explained that, “[t]o the
extent Plaintiff challenges the existence of the ‘debt’ determined
by
the
Orange
County
Clerk
in
the
state
court
proceeding,
challenges the lawfulness of the state foreclosure proceeding, or
seeks the return of property and money that was the subject of the
foreclosure proceeding, such challenge is barred,” because the
Defendants); and Docket Entry 75-9 (Consensual Commercial Lien as
to Grady I. Ingle, et al.). These documents do not, therefore,
qualify as “new evidence” under Rule 59(e). See Pacific Ins. Co.,
148 F.3d at 403. In addition, Plaintiff requests the Court take
judicial notice of a Consensual Commercial Lien as to David R.
Ford, et al. that Plaintiff executed on September 11, 2013.
(Docket Entry 103-5 at 13-25).
Because this document existed
before the Court entered the Order and Judgment, it does not
qualify as “new evidence.” See Pacific Ins. Co., 148 F.3d at 403.
Finally, Plaintiff requests the Court take judicial notice of its
Order and Judgment (Docket Entry 102-2) and a related document
titled Notice of Harm, Damage and Distress of Bond, Presented by
Affidavit (Docket Entry 102-1). These documents present no new law
or evidence not available prior to entry of the Court’s Order and
Judgment that would warrant altering or amending the Order and
Judgment. See Pac. Ins. Co., 148 F.3d at 403.
7
Rooker-Feldman doctrine prohibits a federal district court from
deciding a case “‘brought by state-court losers complaining of
injuries
caused
by
state-court
judgments
district court proceedings commenced.’”
rendered
before
the
(Docket Entry 97 at 9
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005)).)
Plaintiff introduces no new, intervening
evidence or law that would warrant altering or amending the Court’s
Order and Judgment and he makes no convincing argument that the
Court committed a clear error of law in dismissing his case.
See
Coryn Group II, LLC v. O.C. Seacrets, Inc., Civ. Action No.
WDQ–08–2764, 2011 WL 4701749, at *2 (D. Md. Sept. 30, 2011)
(unpublished) (“When a request for reconsideration merely asks the
court to ‘change its mind,’ relief is not authorized.”).
In sum,
Plaintiff’s first argument lacks merit.
Plaintiff’s
second
argument
alleges
that
the
Court
impermissibly considered statements and/or arguments of counsel and
adopted said statements and/or arguments in its Order.
Entry 100 at 6.)
(Docket
At the motion to dismiss stage, the Court does
not consider evidence from either side, only the allegations of the
complaint, which the Court takes as true.
U.S.
662,
696
impermissible
(2009).
statement
Plaintiff
and/or
Ashcroft v. Iqbal, 556
does
argument
not
set
identify
forth
by
Defendants’ counsel that the Court purportedly considered.
8
any
any
(See
Docket Entry 100.)
Plaintiff’s second argument thus provides no
basis for relief under Rule 59(e).
Plaintiff’s third argument contends the Court should have
allowed his FCRA claim to proceed pursuant to his Second Amended
Complaint.
(Docket Entry 100 at 8.)
As the Court previously
noted, Plaintiff expressly abandoned his FCRA claim in his response
to the Chase Defendant’s motion to dismiss.
(Docket Entry 97 at 8,
fn. 4 (quoting Docket Entry 56 at 10 (“Prosecutor is not alleging
claims or damages under the FAIR CREDIT REPORTING ACT (FCRA) in his
Claim-2.”)).)
That fact warranted the Court’s action.
See Estate
of Barber v. Barnes, No. 1:03CV547, 2006 WL 1806466, at *7 n.5
(M.D.N.C. Jun. 29, 2006) (unpublished) (concluding the plaintiffs
abandoned their claim by affirmatively admitting in their response
that no grounds for such claim existed); see also N.C. Motorcoach
Ass’n v. Guilford Cty. Bd. of Educ., 315 F. Supp. 2d 784, 787
(M.D.N.C. 2004) (dismissing the plaintiff’s claim with prejudice
because
it
abandoned
the
claim
at
the
motion
hearing).
Additionally, the Court explained that Plaintiff’s Second Amended
Complaint, if allowed, would not survive a motion to dismiss, so
that “granting leave to allow the Second Amended Complaint would be
futile.”
(Docket Entry 97 at 4-5.)
Plaintiff does not offer any
legal argument or new evidence that would change that outcome.
Plaintiff’s third argument thus fails.
9
III. CONCLUSION
Plaintiff has not carried his burden of showing that an
intervening change in controlling law occurred, that new evidence
not available prior to entry of judgment exists, or that a clear
error of law or manifest injustice requires correction.
IT IS THEREFORE RECOMMENDED that Plaintiff’s Rule 59(e) Motion
to Alter or Amend Judgment (Docket Entry 99) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November
17 , 2015
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?