Ryan et al v. Romo et al

Filing 26

OPINION AND ORDER. Plaintiffs' Motions to Amend, Doc. 20 , 21 , are GRANTED. Defendant Roma's Motion to Dismiss, Doc. 7 , and Wells Fargo's Motion to Dismiss, Doc. 11 , are DENIED AS MOOT. Signed by Magistrate Judge Norah McCann King on 6/30/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES M. RYAN, et al.,
Plaintiffs,
vs.

Civil Action 2:14-cv-38
Judge Marbley
Magistrate Judge King

PEDRO ROMO, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on plaintiff James M. Ryan’s
Motion for Leave to File Amended Complaint Instanter, Doc. 20, and
plaintiff Carolyn C. Ryan’s Motion for Leave to File Amended
Complaint, Doc. 21 (collectively, “Motions to Amend”).

For the

reasons set forth below, the Court GRANTS the Motions to Amend.
I.

BACKGROUND
On January 13, 2014, pro se plaintiffs James M. Ryan and Carolyn

C. Ryan (“plaintiffs”) instituted this action against Pedro Roma
(“Roma”), Wells Fargo Bank, NA, dba Wells Fargo Home Mortgage (“Wells
Fargo”), the Secretary of Housing and Urban Development (“HUD”),1 John
and Jane Doe 1-5 (“the individual Doe defendants”), and John Doe
Corporation 1-5 (“the corporate Doe defendants”).

In their original

Complaint, plaintiffs assert claims of defamation, breach of contract,
civil conspiracy and discrimination by elder abuse against Romo, Wells

1

Service of the Summons and Complaint upon the Secretary of Housing and Urban
Development, Doc. 5, 10, does not appear to comply with Fed.R.Civ.P. 4(i).

Fargo, and the individual and corporate Doe defendants.
Doc. 1, ¶¶ 30-31.

Complaint,

The original Complaint also alleges that Romo and

Wells Fargo violated the Fair Debt Collections Practice Act (“FDCPA”),
15 U.S.C. § 1692, et seq.

Id. at ¶¶ 30-31, 35-37.

Plaintiffs allege that Roma and Wells Fargo falsely accused
plaintiffs of violating the False Statements Act, 18 U.S.C. § 1001,
when plaintiffs filled out an occupancy verification form in
connection with reverse mortgages executed by them in favor of Wells
Fargo and HUD.

Id. at ¶¶ 8-10.

Specifically, plaintiffs alleged

that, in November 2013, they filled out a form verifying that the
property that secured first and second reverse mortgages was their
primary residence.

Id. at ¶ 8.

On December 17, 2013, however, Roma

and Wells Fargo sent a letter to plaintiffs stating that they had been
notified that plaintiffs no longer used the mortgaged property as
their primary residence and that, under the terms and conditions of
one of the reverse mortgages, the balance on the reverse mortgage loan
had become due.

Id. at ¶ 10; Exhibit B to the Complaint.

Plaintiffs

further allege that, at all relevant times, the mortgaged property was
their primary residence and that any notice to the contrary resulted
from intentional misrepresentations by the individual and corporate
Doe defendants to Roma and Wells Faro.

Complaint, at ¶¶ 11-12.

On February 11, 2014, defendant Roma filed a Motion to Dismiss
the Complaint pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6),
contesting personal jurisdiction and asserting that the Complaint
failed to state a claim upon which relief could be granted.

Doc. 7.

On February 11, 2014, Wells Fargo also moved to dismiss plaintiffs’

2

Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief could be granted.

Doc. 11.

On May 1, 2014, plaintiffs

filed their Motions to Amend, each attaching an identical proposed
Amended Complaint.
Like the original Complaint, the proposed Amended Complaint
asserts claims of defamation, breach of contract, civil conspiracy and
discrimination by elder abuse against Romo, Wells Fargo, and the
individual and corporate Doe defendants.

Amended Complaint, ¶¶ 33-34.2

The Amended Complaint also again alleges that Romo and Wells Fargo
violated the FDCPA.

Id. at ¶¶ 74-79.

However, the Amended Complaint

now proposes to assert a claim for fraudulent misrepresentation and
tortious interference with contract against Romo, Wells Fargo, and the
individual and corporate Doe defendants.

Id. at ¶¶ 29-32, 54-73.

Additionally, the Amended Complaint includes a new claim against HUD
for breach of contract.
II.

Id. at ¶¶ 33, 35-53, 70.

LAW AND ANALYSIS
Plaintiffs’ Motions to Amend are governed by Fed.R.Civ.P. 15(a).

That rule provides that “[t]he court should freely give leave [to
amend] when justice so requires.”

F.R. Civ. P. 15(a)(2).

“[T]he

thrust of Rule 15 is to reinforce the principle that cases ‘should be
tried on their merits rather than the technicalities of pleadings.’”
Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) quoting
Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982).

2

The grant or

Although the proposed Amended Complaint now sets forth a request for
declaratory judgment as a separate cause of action, Amended Complaint,
at ¶¶ 80-82, the original Complaint also sought a declaratory judgment
and specifically invoked 28 U.S.C. § 2201. Complaint, at ¶¶ 8, 10-11.

3

denial of a request to amend a complaint is left to the broad
discretion of the trial court.

General Elec. Co. v. Sargent & Lundy,

916 F.2d 1119, 1130 (6th Cir. 1990).

In exercising its discretion, the

trial court may consider such factors as “undue delay, bad faith or
dilatory motive on the part of a movant, repeated failures to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment [and] futility
of the amendment.”

Foman v. Davis, 371 U.S. 178, 182 (1962).

Roma and Wells Fargo argue that plaintiffs’ Motions to Amend
should be dismissed because the allegations in the proposed Amended
Complaints are legally deficient and cannot withstand a motion to
dismiss.

Accordingly, they urge the Court to deny plaintiffs leave to

amend on the basis that amendment would be futile.3
Although it is proper for a party to challenge a proposed amended
complaint on the ground that it fails to state a claim upon which
relief can be granted, there is some conceptual difficulty presented
when, as here, the sole basis for a party's opposition to the filing
of an amended pleading is that the pleading is futile.

A Magistrate

Judge cannot ordinarily rule on a motion to dismiss, see 28 U.S.C. §
636(b)(1)(A), and denying a motion for leave to amend on grounds that
the proposed new claim is legally insufficient is, at least
indirectly, a ruling on the merits of that claim.

VanBuren v. Ohio

Dep’t of Public Safety, No. 2:11-cv-1118, 2012 WL 5467526, at * 4
(S.D. Ohio Nov. 9, 2012); Durthaler v. Accounts Receivable Mgmt.,
Inc., 2:10-cv-1068, 2011 WL 5008552 (S.D. Ohio Nov. 2, 2012). Under
3

Romo also asserts that the Amended Complaint fails to allege facts
demonstrating that this Court can exercise personal jurisdiction over him.

4

the particular circumstances presented in this case, the Court
concludes that the sufficiency of the claims sought to be asserted in
the Amended Complaint is better resolved by the District Judge.
Accordingly, the Court will grant plaintiffs leave to file the
Amended Complaint with the understanding that defendants are free to
move to dismiss it.

See VanBuren,

2012 WL 5467526, at * 4

(explaining that it is a sound exercise of discretion to allow
amendment under Rule 15(a) and permit a claim to be tested before a
District Judge by way of a motion to dismiss).
III. CONCLUSION
Plaintiffs’ Motions to Amend, Doc. 20, 21, are GRANTED.

The

Clerk is DIRECTED to file plaintiffs’ Amended Complaint, attached as
an Exhibit to plaintiffs’ Motions to Amend.

Defendant Roma’s Motion

to Dismiss, Doc. 7, and Wells Fargo’s Motion to Dismiss, Doc. 11, are
DENIED AS MOOT and WITHOUT PREJUDICE to the filing of a motion to
dismiss challenging the sufficiency of plaintiffs’ Amended Complaint.

IT IS SO ORDERED.

June 30, 2014

___s/Norah McCann King______
Norah McCann King
United States Magistrate Judge

5