Forgues v. Carpenter Lipps & Leland LLP

Filing 29

Order Adopting Report and Recommendation 26 denying 19 Motion for leave to Amend First Amended Complaint filed by Christine J. Forgues. Judge Christopher A. Boyko on 3/22/2018. (R,D)

Case: 1:16-cv-02576-CAB Doc #: 29 Filed: 03/22/18 1 of 6. PageID #: 589

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHRISTINE J. FORGUES,

)
)
Plaintiff,
)
)
Vs.
)
)
CARPENTER LIPPS & LELAND LLP, )
ET AL.,
)
)
Defendants.
)

CASE NO.1:16CV2576
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on the Report and Recommendation of the
Magistrate Judge (ECF # 26) that Plaintiff’s Motion for Leave to Amend Her First
Amended Complaint (ECF # 19) be denied. Upon consideration of the Motion, Briefs,
Report and Recommendation and Objections, the Court ACCEPTS and ADOPTS the
Magistrate Judge’s Report and Recommendation and DENIES Plaintiff’s Motion to
Amend.
On January 5, 2017, Plaintiff Christine J. Forgues filed her First Amended
Complaint, pro se, alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”) against Defendants Carpenter Lipps & Leland LLP, David Wallace and

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Deutsche Bank National Trust Company arising out of Defendants’ attempts to collect
on obligations related to the foreclosure of Plaintiff’s residence. On February 21
2017, Defendants filed a Motion to Dismiss the First Amended Complaint. Plaintiff
filed a Brief in Opposition, to which Defendants replied. On June 26, 2017, the
Magistrate Judge issued a Report and Recommendation that Defendants’ Motion be
granted. Objections were filed by Plaintiff and Defendants filed a response. On
September 28, 2017, the Court adopted and accepted the Report and
Recommendation, granting Defendant’s Motion to Dismiss. This case was dismissed
and Judgment was entered in Defendants’ favor.
On October 24, 2017, Plaintiff filed a Motion for Leave to Amend First
Amended Complaint arguing that the Sixth Circuit case, Goodson v. Bank of
America, N.A., 600 F. App’x 422 (6th Cir. 2015), upon which this Court relied in
granting Defendants’ Motion to Dismiss, was unpublished and not binding precedent.
Standard of Review
Under Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636, the District Court is required
to review de novo any portion of the Magistrate Judge’s Report to which a specific
objection is made. A party who fails to file an objection waives the right to appeal.
U.S. v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The District Court need only
review the Magistrate Judge’s factual or legal conclusions that are specifically
objected to by either party. Thomas v. Arn 474 U.S. 140, 150 (1985).
Local Rule 72.3(b) recites in pertinent part:
The District Judge to whom the case was assigned shall make a de
novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made and may
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accept, reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. The District Judge
need conduct a new hearing only in such District Judge’s discretion or
where required by law, and may consider the record developed before
the Magistrate Judge, making a determination on the basis of the
record. The District Judge may also receive further evidence, recall
witnesses or recommit the matter to the Magistrate Judge with
instructions.
LAW AND ANALYSIS
Plaintiff seeks leave to amend her Complaint for a second time under
Fed. R. Civ. P. 15(a)(2). The Magistrate Judge correctly points out that while Rule 15
“embodies a liberal amendment policy,” it is well established that once judgment has
been entered, the moving party must first seek relief under Rules 59 or 60. See Pond
v. Haas, 674 Fed.App’x 466, 472 (6th Cir. 2016). Indeed, the Sixth Circuit has
recognized “following entry of final judgment, a party may not seek to amend their
complaint without first moving to alter, set aside, or vacate the judgment pursuant to
Rule 59 or Rule 60 of the Federal Rules of Civil Procedure.” Morse v. McWhorter,
290 F.3d 795, 799 (6th Cir. 2002). See also Benzon v. Morgan Stanley Distributors,
Inc., 420 F.3d 598, 613 (6th Cir. 2005).
The Court agrees with the Magistrate Judge that Plaintiff’s Motion is
procedurally improper under Rule 15(a)(2). However, the Court agrees to construe
the Motion under Federal Rules of Civil Procedure 59(e) and 60(b). The Sixth Circuit
has determined motions under Rule 59(e) are generally only appropriate in the
following circumstances: 1) to correct a clear error of law; 2) to incorporate
newly-discovered evidence; 3) to prevent manifest injustice; and 4) to address an
intervening change in controlling law. Betts v. Costco Wholesale Corp., 558 F.3d
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461, 474 (6th Cir. 2009). See also Henderson v. Walled Lake Consol. Schs., 469
F.3d 479, 496 (6th Cir. 2006).
In her Reply Brief, Plaintiff argues that the Sixth Circuit case that the Court
relied upon to dismiss her case was unpublished and not binding precedent and
therefore, was prejudicial. Plaintiff also argues that she has new allegations
regarding monthly statements sent by Deutsche Bank.
In the previous Report and Recommendation, The Magistrate Judge analyzed
the factors set out in Goodson v. Bank of Am., N.A. 600 F.App’x. 422, 431 (6th Cir.
2015) and determined that Plaintiff failed to allege a plausible claim that the letter
sent by the Defendant’s lawyer was for the purpose of inducing payment. The factors
are as follows: “(1) the nature of the relationship of the parties; (2) whether the
communication expressly demanded payment or stated a balance due; (3) whether it
was sent in response to an inquiry or request by the debtor; (4) whether the
statements were part of a strategy to make payment more likely; (5) whether the
communication was from a debt collector; (6) whether it stated that it was an attempt
to collect a debt; and (7) whether it threatened consequences should the debtor fail to
pay.” Id.
The Magistrate Judge found the letter did not demand payment nor did it
indicate it was an attempt to collect a debt, in fact, it did not reference Plaintiff’s debt
at all. The Court held that the Magistrate Judge properly considered the Goodson
factors and correctly determined that an action against all Defendants failed.
Here, Defendants argue that Plaintiff’s Motion for Leave to Amend Complaint
does not meet the standards for granting Rule 59(e) relief. The Court agrees with the
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Magistrate Judge that there is no basis for granting the relief. Plaintiff does not
provide any newly discovered evidence and cannot show a manifest error of law.
The Magistrate Judge also determined that the statements in question are not newly
discovered evidence and were available to Plaintiff at the time she filed her first
Amended Complaint. Plaintiff offers no explanation for not presenting this evidence
previously and cannot do so now.
The Magistrate Judge points out that Plaintiff has cited no legal authority for
the assertion that a court’s reliance upon an unpublished decision is considered a
“manifest error of law.” The Sixth Circuit has acknowledged that, while unpublished
decisions do not have precedential authority, they may be considered for their
persuasive value in a court’s analysis. See U.S. v. Sanford, 391, 396 (6th Cir. 2007).
The Court agrees that Plaintiff cannot show that controlling law was overlooked and
thus, there is no manifest error.
The Court agrees with the Magistrate Judge that there is no basis for relief
under Rule 60(b) and Plaintiff does not object to the recommendation of the
Magistrate Judge. Therefore, Plaintiff has waived her objection. Plaintiff has not
shown any manifest error of law or newly discovered evidence to persuade the Court
to grant the Motion for Leave to Amend construed under Rule 59(e).
Therefore, for the foregoing reasons, the Court accepts and adopts the
Magistrate Judge’s Report and Recommendation and denies Plaintiff’s Motion for
Leave to Amend First Amended Complaint (ECF # 19).

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IT IS SO ORDERED.

/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 22, 2018

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