Glazer v. Chase Home Finance LLC et al

Filing 271

Order. Defendants' Renewed Motion to Strike Class Allegations (Related doc # 255 ) is granted in part. The Court strikes Plaintiff's Renewed Motion for Class Certification (Related doc # 253 ) subject to reinstatement if leave i s granted. Plaintiff is ordered to file Motion for Leave to Amend within seven days from the date of this Order. Defendants shall file an opposition within seven days after filing of the Motion for Leave. If the Court grants leave to Amend, it will order the Renewed Motion for Class Certification and Opposition and Reply be reinstated on the docket and will expedite its ruling. Judge Christopher A. Boyko on 3/31/2017.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAWRENCE R. GLAZER,

)
)
Plaintiff,
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Vs.
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CHASE HOME FINANCE, LLC ET AL.,)
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Defendant.
)

CASE NO.1:09CV1262
JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants’ Renewed Motion to Strike Class
Allegations in the Second Amended Complaint (ECF # 255). Defendants move to strike the
class allegations in Plaintiffs’ Second Amended Complaint because named Plaintiff Lawrence
Glazer has not obtained class counsel. Previous counsel, Nicolette Glazer, Lawrence Glazer’s
wife, was disqualified in the Court’s November 2, 2015 Order. Plaintiff was ordered to obtain
new counsel within thirty days of the Order or proceed pro se. Plaintiff did not obtain new
counsel and proceeds pro se. According to Defendants, a pro se litigant cannot fairly and
adequately represent a putative class. Plaintiff has requested that the Court appoint class counsel
but Defendants argues it is for Plaintiff to propose class counsel under Fed. R. Civ. P. 23(a)(4).
Therefore, Defendants move to strike the class allegations because a pro se litigant cannot
represent a class.
Defendants further contend Glazer cannot fairly and adequately represent the interests of
the class because he was previously represented by his wife and law firm, presenting an inherent
conflict of interest. Furthermore, they argue Glazer does not share common interests with the

putative class because he seeks damages far in excess of any recovery the class may obtain,
including fees owed his law firm in the underlying foreclosure action. Also, according to
Defendants, Glazer’s deposition answers reveal he is antagonistic to the class because he either
failed to answer or denied knowledge of the most basic facts supporting his claims and
repeatedly denied knowledge of his claims.
Defendants also move to strike because the class definitions in Plaintiff’s proposed
Second Amended Complaint attached to his Motion for Leave to Amend were altered after the
Court granted leave to amend based on his proposed Second Amended Complaint.
Plaintiff alleges a motion to strike class allegations under Rule 12(f) is an improper
mechanism in which to challenge the allegations in a class action complaint. Instead, Rule 23
controls the right of Plaintiff to seek class certification of claims. Citing the United States
Supreme Court decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co., 130 S.
Ct. 1431, (2010) Plaintiff contends only a Rule 23 analysis may determine the scope and
suitability of class claims.
Furthermore, Plaintiff argues that Rule 23 does not condition the certification of class
upon the adequacy or presence of class counsel.

In essence, according to Plaintiff, Defendants

seek to put the cart before the horse in an attempt to circumvent the proper analysis under Rule
23. However, under Rule 23 so long as the prerequisites of Rule 23 (a) and (b) are met, the
Court may certify a class regardless of the presence of class counsel. Therefore, according to
Plaintiff, the Court must first determine whether a class action may be maintained after
consideration of Rule 23(a) and (b). Only after such a determination may it consider the
adequacy of class counsel.

Furthermore, if a class is certified, the Court should appoint class

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counsel in order to protect the interests of the class.
Upon review, the Court finds Plaintiff has circumvented the Court’s order granting leave
to amend its complaint to wholly rewrite his proposed class definitions without Defendants
having an opportunity to challenge the amendments. On June 13, 2013, nearly four years after
his initial Complaint was filed with the Court, Plaintiff sought leave to amend his Complaint to
add new defendants, claims and class allegations. Attached to the Motion for Leave to Amend
was a proposed Second Amended Complaint. Defendants objected and the Court granted in part
and denied in part Plaintiff’s Motion for Leave to Amend. The Court allowed the class
allegations to proceed but denied the addition of certain new defendants and claims. Plaintiff
never sought leave to amend instanter and did not file its Second Amended Complaint. Instead,
the parties proceeded to litigate as if a Second Amended Complaint were filed. Defendants filed
an Answer, Plaintiff moved for class certification and partial summary judgment and Defendants
moved to strike.
On March 30, 2016, the Court ordered Plaintiff to file a “compliant” Second Amended
Complaint that comported with the Court’s ruling on the Motion for Leave to Amend. However,
having had the benefit of Defendants’ challenges to his class claims, instead of filing the Second
Amended Complaint containing the proposed class definitions contained therein, Plaintiff’s filed
a Second Amended Complaint that contained new class definitions drafted around Defendants’
“fail-safe” challenges to the class definition found in the proposed Second Amended Complaint.
As a judge in this district has held,
Under Rule 15(a), a party may amend its pleadings once as a matter of course
prior to being served with a responsive pleading, but thereafter only with leave of
court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). Leave shall
be given freely when justice so requires. Id. Generally, an amendment that does
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not comply with Rule 15(a) is without legal effect and any new matter it contains
will not be considered unless the amendment is resubmitted for approval.. Having
concluded that the changes made by Plaintiffs' amended complaint exceeded the
scope of leave granted, the Court finds the TAC fails to comply with Rule 15(a).
Accordingly, the Court views the TAC as a proposed amendment and must
determine whether to grant leave at this time. A motion for leave to amend may
be denied on any of five well-established grounds, including prejudice to the
opposition. “[P]rejudice to the nonmoving party is the touchstone for the denial of
an amendment.” Among the relevant considerations, prejudice to the opposing
party carries the greatest weight. For these purposes, prejudice has been defined
to include “undue difficulty in prosecuting [or defending] a lawsuit as a result of a
change in tactics or theories on the part of the other party.” Faced now with
Defendants' motion to strike, the Court finds that the new causes of action must be
stricken because their inclusion in the TAC far exceeded the scope of leave
granted by the Court, and allowing them to stand would severely prejudice
Defendants. (Internal citations omitted).
In re Keithley Instruments, Inc., Derivative Litig., 599 F. Supp. 2d 908, 913 (N.D. Ohio 2009).
Because Defendants never had the opportunity to challenge the new class definitions and
allegations they are necessarily prejudiced by it. In fact, the parties had fully briefed the class
issues based on the allegations in the proposed Second Amended Complaint only to have
Plaintiff revise the class definition and add allegations not contained in the proposed Second
Amended Complaint.
Therefore, the Court strikes the class allegations in the Second Amended Complaint as
having been filed without leave and the Renewed Class Certification Motion is stricken as it is
based on the improperly filed Second Amended Complaint. However, this case has languished
too long and demands expedited determinations. Therefore, Plaintiff is ordered to file his
Motion for Leave to Amend no later than seven days from the date of this Order. Defendants
shall file an opposition no later than seven days after filing of the Motion for Leave. The Court
will expedite its ruling on Leave. If the Court grants leave to Amend it will order the Renewed
Motion for Class Certification and Opposition and Reply be reinstated on the docket and will
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expedite its ruling accordingly.
Therefore, the Court grants Defendants’ Renewed Motion to Strike Class Allegations, in
part, and strikes the Renewed Motion for Class Certification (ECF # 253) subject to
reinstatement if leave is granted.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 31, 2017

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