Ogle et al v. BAC Home Loans Servicing LP et al

Filing 34

OPINION AND ORDER finding as moot 3 Motion for Preliminary Injunction; denying 9 Motion to Strike ; denying 14 Motion for Preliminary Injunction. Signed by Judge George C Smith on 8-29-11. (ga)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charles R. Ogle, et al.,
Plaintiffs,
Case No. 2:11-cv-540
JUDGE SMITH
Magistrate Judge Kemp

v.

BAC Home Loans Servicing LP, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Renewed Motion for Preliminary Injunction
(Doc. 14). This motion is fully briefed and ripe for disposition. For the reasons that follow, the
Court DENIES Plaintiffs’ motion.
I.

BACKGROUND

In June 2011, pro se Plaintiffs Charles R. Ogle and Melanie A. Ogle initiated this action
against Defendants alleging that Defendants are unlawfully attempting to displace them from their
home. Plaintiffs assert a number of federal and state claims, including a claim under the Racketeer
Influenced and Corrupt Organizations Act, a claim under the Ohio Corrupt Practices Act, and a
claim for injunctive relief. Plaintiffs filed a Motion for Preliminary Injunction (Doc. 3) with their
original Complaint (Doc. 2), seeking an order restraining Defendants from effecting any legal
action against them in regard to a mortgage secured by property owned by them. The Motion
was fully briefed. In response to Plaintiffs’ reply to Defendants’ response to the motion for a

preliminary injunction, Defendants moved to strike Exhibit “A” to Plaintiffs’ reply (Doc. 9).
Plaintiffs did not timely respond to the Motion to Strike Exhibit “A”. Prior to any ruling on the
Motion for Preliminary Injunction, or the Motion to Strike Exhibit “A”, Plaintiffs filed an
Amended Complaint (Doc. 15) and a Renewed Motion for Preliminary Injunction (Doc. 14).
Additionally, within the last two weeks, Defendants filed Motions to Dismiss (Docs. 31 and 32),
and a Motion to Strike the Amended Complaint (Doc. 33). These three motions are not yet ripe
for review. Because the Renewed Motion for Preliminary Injunction and the Motion to Strike
Exhibit “A” are ripe for disposition, they will be resolved at this time. The remaining motions will
be resolved at a later date.
II.

STANDARD OF REVIEW

Rule 65(b) of the Federal Rules of Civil Procedure permits a party to seek injunctive relief
to prevent immediate and irreparable injury. A court considers four factors in determining
whether to grant the extraordinary remedy of injunctive relief: (1) whether the movant has a
strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by issuance of the injunction. Chabad
of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004).
The standard for granting a permanent injunction is “essentially the same,” as that for a
preliminary injunction, except that a plaintiff must demonstrate actual success on the merits.
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 (1987). “The four considerations
applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that
must be met.” Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001).

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Notwithstanding this balancing approach, however, the likelihood of success and irreparable harm
factors predominate. Thus, “[a]lthough no one factor is controlling, a finding that there is simply
no likelihood of success on the merits is usually fatal.” Gonzales v. National Bd. of Med.
Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
As it relates to Plaintiffs’ claim under the Ohio Corrupt Practices Act (Ohio Rev. Code §
2923.31 et seq.) (“OCPA”), which is the primary basis of their request for a preliminary
injunction, Ohio Revised Code § 2923.34(B) provides that “[i]f the plaintiff in a civil action
instituted pursuant to this section proves the violation by a preponderance of the evidence, the
court, after making due provision for the rights of innocent persons, may grant relief by entering
any appropriate orders to ensure that the violation will not continue or be repeated.” And Ohio
Revised Code § 2923.34(D) provides that “[i]n a civil proceeding under division (B) of this
section, the court may grant injunctive relief without a showing of special or irreparable injury. . .
Pending final determination of a civil proceeding initiated under this section, the court may issue a
temporary restraining order or a preliminary injunction upon a showing of immediate danger or
significant injury to the plaintiff[.]”
III.

DISCUSSION

As a preliminary matter, the Court will address Defendants’ Motion to Strike Exhibit “A”
to Plaintiffs’ Reply. Citing Rule 12(f) of the Rules of Civil Procedure, Defendants argue that the
Court should strike certain allegations in Plaintiffs’ reply brief and the Exhibit that is attached to
the reply which forms the bases of these allegations. Defendants argue that this material is
irrelevant, immaterial, and unfairly prejudicial.
Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f) is limited to “pleadings and
is inapplicable to other filings.” Turner v. City of Akron, 2008 WL 45376 (N.D. Ohio Jan. 2,
2008) (quoting Dawson v. Kent, 682 F. Supp. 920 (N.D. Ohio 1988)); Zep Inc. v. Midwest Motor
Supply Co., 2010 WL 2572129, *2 (S.D. Ohio June 22, 2010) (“The Federal Rules of Civil
Procedure do not provide for a motion to strike documents or portions of documents other than
pleadings.”). A brief is not a “pleading.” See Fed. R. Civ. P. 7(a) (defining what pleadings are
permitted). Therefore, by its terms, Rule 12(f) does not apply to briefs and other non-pleadings.
Nonetheless, the Court has the inherent power to strike filings that do not comply with court
rules. See Zep Inc., at *2 (noting that courts apply their inherent power to control their dockets
when determining whether to strike documents).
Exhibit “A” to Plaintiffs’ reply brief (Doc. 8) appears to be some type of news release
concerning an audit report relating to the assignments of mortgages that had been recorded in the
Southern Essex District Registry of Deeds, in the Commonwealth of Massachusetts. It is
reported in the document that a high percentage of mortgage assignments that were the subject of
the audit were invalid, but the document provides no information regarding the particular
mortgage loan that is at issue here. And Plaintiff fails to explain how this document is relevant to
this proceeding. Although the Court will not strike the challenged exhibit, it will exclude this
exhibit from consideration in resolving Plaintiff’s motion for injunctive relief.
Plaintiffs seek an order enjoining Defendants from displacing them from their home in
connection with the foreclosure action filed by Defendants in the Hocking County Court of
Common Pleas. In effect, Plaintiffs are requesting an order enjoining any further proceedings in
the foreclosure action in state court. Defendants argue that Plaintiffs’ injunction request is barred

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by the Anti-Injunction Act, that even if it is not barred, Plaintiffs have failed to properly plead a
claim under the OCPA and thus cannot seek injunctive relief under it, and that Plaintiffs have
failed to make a showing of immediate danger or significant harm necessary to grant injunctive
relief under the OCPA.
The Anti-Injunction Act states that “[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C.
§ 2283. The Supreme Court of the United States has recognized that the Act creates “an absolute
prohibition against enjoining state court proceedings, unless the injunction falls within one of the
three specifically defined exceptions.” Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive
Eng’rs, 398 U.S. 281, 286-87 (1970). These three exceptions are: (1) where Congress expressly
authorizes, (2) where necessary in aid of the court’s jurisdiction, and (3) where necessary to
protect or effectuate the court’s judgments. Martingale LLC v. City of Louisville, 361 F.3d 297,
302 (6th Cir. 2004); see 28 U.S.C. § 2283. The party pursuing the injunction bears the burden of
establishing that the injunction falls within one of the exceptions. Smith v. Encore Credit Corp.,
623 F. Supp.2d 910, 918–919 (N.D. Ohio 2008).
In the case at bar, Plaintiffs allege that they are entitled, under the OCPA, to injunctive
relief against any state court foreclosure proceedings. Plaintiffs do not, however, direct the Court
to any applicable exception to the Anti-Injunction Act. In fact, there is no indication that any of
the exceptions apply here. See Sherman v. Saxon Mortgage Services, Inc., Case No. 10-2282,
2010 WL 2465459, 6 (W.D. Tenn., Jun 14, 2010) (if the foreclosure action is still pending in state
court, the plaintiffs’ prayer for relief from the foreclosure is precluded by the Anti–Injunction

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Act). Because Plaintiffs’ Renewed Motion for Preliminary Injunction must be denied in view of
the Anti-Injunction Act, and the absence of any one of the three specifically defined exceptions to
the prohibition against enjoining state court proceedings, it is unnecessary to address the
additional arguments asserted by Defendants for why Plaintiffs’ injunction request should be
denied.
IV.

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs’ Renewed Motion for Temporary
Injunction (Doc. 14). Additionally, Plaintiffs’ original Motion for Temporary Injunction (Doc. 3)
is DENIED as moot, and Defendants’ Motion to Strike (Doc. 9) is DENIED.
The Clerk shall remove Documents 3, 9, and 14 from the Court’s pending motions list.
IT IS SO ORDERED.
s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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