Rajapakse v. Royal Arms Apartments (JRG2)
MEMORANDUM OPINION granting 34 Motion to Dismiss for Failure to State a Claim; denying 55 Motion to Amend/Correct. Signed by Magistrate Judge Christopher H Steger on 12/5/2017. (SAC, )Order mailed to Rajapakse.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
SAMANTHA D. RAJAPAKSE
LEXINGTON ASSET MANAGEMENT (TN),
LLC, d/b/a Royal Arms Apartments
Case No. 1:16-cv-97
Before the Court is a Motion to Dismiss filed by Defendant Lexington Asset
Management (TN), LLC ("Lexington") [Doc. 34]. Also before the Court is Plaintiff's Motion to
Amend her Complaint [Doc. 55]. Defendant Lexington contends this action should be dismissed
in its entirety based upon the doctrine of res judicata because the conduct which forms the basis
of Plaintiff Samantha Rajapakse's action was the subject of two previous state court actions. For
the reasons stated herein, the Court agrees with Defendant's position. Consequently, Defendant's
Motion to Dismiss [Doc. 34] is GRANTED, and Plaintiff's Motion to Amend the Complaint
[Doc. 55] is DENIED.
A. Procedural History
On April 18, 2016, Plaintiff filed a pro se complaint in this Court alleging violations of
the Tennessee Uniform Residential Landlord and Tenant Act, Tenn. Code Ann. § 66-28-101 et.
seq., deprivation of equal protection and due process afforded by the United States Constitution,
and violations of the Fair Housing Act, 41 U.S.C. §§ 3601-3619, based on her rental of an
apartment and subsequent eviction from that unit at an apartment complex known as the Royal
Arms Apartments in Chattanooga, Tennessee [Doc. 2].
In her complaint, Plaintiff asked the Court to intervene in two pending state court
proceedings involving her and Royal Arms Apartments, asserting that the state courts had
deprived her of due process and equal protection and were "allowing the Royal Arms to harass
her during her process of terminating her lease and denying evidence relevant to the case . . . ."
[Doc. 2, Complaint at 2, Page ID # 12]. On April 28, 2016, after engaging in the screening
process with respect to Plaintiff's complaint pursuant to 28 U.S.C. § 1915, the Court declined
Plaintiff's request that the federal court intervene in the pending state court proceedings. Instead,
the Court entered an order dismissing all claims except for her claims alleging racial
discrimination and retaliatory eviction in violation of the Fair Housing Act, 41 U.S.C. §§ 36013619 [Doc. 4].
Defendant filed an answer to the complaint on July 26, 2016, and Plaintiff was served by
United States mail the same day [Doc. 24]. Under Fed. R. Civ. P. 15(a)(1) and Fed. R. Civ. P.
6(d), Plaintiff had 21 days plus three days for service, giving her a total of 24 days, in which to
amend her complaint as a matter of right. Therefore, if Plaintiff had wanted to amend her
complaint as a matter of right, she was required to do so by August 19, 2016. On August 22,
2016, without seeking leave of Court as required by Fed. R. Civ. P. 15(a)(2), Plaintiff filed an
amended complaint in this case [Doc. 26]. Because Plaintiff failed to follow the Federal Rules of
Civil Procedure when filing her amended complaint [Doc. 26], the amended complaint is not
properly before the Court and will not be considered. On October 24, 2016, Plaintiff moved to
amend her complaint to seek treble damages [Doc. 55]. This motion to amend her complaint will
be addressed herein.
B. Plaintiff's Current Lawsuit in Federal Court
In the instant case, Plaintiff seeks relief under the Fair Housing Act, 41 U.S.C. §§ 36013619, for what she asserts was race discrimination with respect to her treatment as a tenant and
her subsequent eviction from the Royal Arms Apartments. More specifically, Plaintiff claims
that she was discriminated against on the basis of her race in the following manner:
she was harassed by Lexington employees;
her complaints were ignored regarding needed repairs, pest infestations, odors of
dog urine, and excessive noise;
she was charged excessive fees;
she was subject to improper collection efforts;
her credit rating was affected as a result of false statements made by Defendant;
she was evicted in retaliation for bringing a state claim against Royal Arms
Defendant's motion to dismiss [Doc. 34] focuses on two state court lawsuits which also
arose from Plaintiff's rental of, and subsequent eviction from an apartment at the Royal Arms
Apartments. Plaintiff's complaint [Doc. 2, Complaint at 2-4] makes specific reference to these
two lawsuits brought in General Sessions Court in Hamilton County, Tennessee. The two
lawsuits referenced in her complaint are: Samantha Rajapakse v. Royal Arms Apartments, Case
No. 15GS12697, and Royal Arms Apartments v. Samantha Rajapakse. Plaintiff's complaint
does not provide a case number for the second lawsuit [Id.]. As observed by this Court in a
previous order, much of Plaintiff's complaint is focused on the alleged failure of the General
Sessions Court to award her injunctive relief and damages [See Doc. 4, April 28, 2015 Order at
2, Page ID # 25].
C. Previous State Court Lawsuits
1. The State Court Litigation
The first state lawsuit was filed by Plaintiff in the General Sessions Court for Hamilton
County, Tennessee, on December 21, 2015, in Samantha D. Rajapakse v. Royal Arms
Apartments and Lexington Asset Management, No. 15 GS 12697 (the "State Court Litigation").
In her complaint filed in the State Court Litigation, Plaintiff alleged the following:
Plaintiff and Royal Arms Apartments signed an agreement to rent Unit 107 to
Plaintiff [Doc. 35-1, Ex. A, State Court Complaint, at 2, Page ID #168-771];
Defendant refused to enforce building codes, which resulted in unsanitary
Defendant violated the Uniform Residential Landlord and Tenant Act, Tenn.
Code Ann. § 66-28-101 et seq. [Id.];
Defendant created a hostile living environment [Id.];
Defendant created an unhealthy environment forcing Plaintiff to terminate her
Defendant constructively evicted Plaintiff [Id. at 3];
Defendant placed derogatory remarks on Plaintiff's credit reports [Id.];
Defendants' eviction proceedings were illegal [Id.];
Defendant provided false information to the courts [Id.];
Defendant failed to provide proper notice regarding the eviction proceedings [Id.];
Plaintiff was denied the ability to view the property [Id. at 4];
Plaintiff was improperly charged an additional security deposit [Id. at 3-4];
Plaintiff was forced to pay additional fees [Id. at 4];
Plaintiff was told that being late on rent would not be a problem [Id.];
Plaintiff was harassed when her rental payments were not made on time [Id.];
Defendant sent Plaintiff threatening e-mails regarding non-payment of rent [Id.];
Defendant failed to take any action regarding loud noises made by the upstairs
tenant despite repeated complaints from Plaintiff [Id. at 5];
All references to Page ID #s are to this Court’s internal, electronic page numbering system.
The sequential page numbers are found on the bottom of every page of every document filed
electronically in this Court Record.
The noise made by the tenant renting the upstairs apartment caused Plaintiff to be
unable to enjoy the use of her apartment [Id.];
There were animals in the walls of Plaintiff's apartment [Id. at 6];
Defendants refused to respond to calls regarding the rodent/animal activity [Id.];
Plaintiff reported a foul smell coming from the vents in her apartment [Id. at 7];
Defendants did not check the unit or investigate the smell [Id.].
The relief sought by Plaintiff in the State Court Litigation included requesting an
injunction prohibiting Defendant from gaining access to the apartment; requesting termination of
the lease for non-compliance; seeking an order to prohibit Defendants from reporting derogatory
remarks on her credit report or to other property managers; seeking an order to prohibit further
litigation against Plaintiff until the State Court Litigation was heard; and seeking an order
requiring Defendants to pay half of her moving expenses and other monetary relief [Id. at 8-10].
On February 2, 2016, the General Sessions Court, after conducting a trial, entered a
judgment for Defendant [Doc. 35-1, Ex. B, Page ID # 179]. On February 11, 2016, Plaintiff filed
a Notice of Appeal to the Circuit Court of Hamilton County, Tennessee [Doc. 35-1, Ex. C, Page
ID # 182]. On April 7, 2016, the Circuit Court of Hamilton County, Tennessee dismissed
Plaintiff's Complaint [Doc. 35-1, Ex. D, Page ID # 184]. The grounds for dismissal were that
"[t]he issues raised in the appeal were all either moot or the Court lacked jurisdiction to consider
the issues as those issues were res judicata in the General Sessions Court in Hamilton County,
Tennessee under Docket 16GS465 . . ." [Id.]. Docket No. 16GS465 is the eviction proceeding
filed by Defendants after Plaintiff filed the State Court Litigation. The eviction proceeding,
docketed as no. 16GS465 will be discussed below.
On June 16, 2016, Plaintiff appealed the dismissal of her State Court Litigation to the
Tennessee Court of Appeals [Doc. 35-1, Ex. E, Page ID # 187-88]. On August 19, 2016,
Plaintiff filed a "Motion to Dismiss" her appeal [Doc. 35-1, Ex. F, Page ID # 190]. On
September 9, 2016, upon consideration of the Plaintiff's motion to dismiss, the Tennessee Court
of Appeals dismissed the appeal [Doc. 39-1, Exhibit 1, Page ID # 226].
The Eviction Proceeding
On January 12, 2016, while Plaintiff's General Sessions Court lawsuit against Defendant
(i.e., the State Court Litigation) was pending, Royal Arms Apartments filed an eviction
proceeding against Plaintiff in the General Sessions Court for Hamilton County, Tennessee,
styled Royal Arms Apartments v. Samantha Rajapakse, Docket No. 16GS465 (the "Eviction
Proceeding") [Ex. G, Page ID # 193]. The basis for the eviction action was nonpayment of rent
[Id.]. On February 2, 2016, the General Sessions Court for Hamilton County, Tennessee,
conducted a trial and entered a judgment against Ms. Rajapakse for $1,090.74, costs, taxes, and
possession of the rental unit [Doc. 35-1, Ex. I; Page ID # 202]. Plaintiff did not appeal this
judgment [Doc. 35-1, Ex. J, Page ID # 205]. General Sessions Judge Gary Starnes was the
presiding judge in both the State Court Litigation and the Eviction Proceeding, both of which
were tried on February 2, 2016. Most likely the two cases were consolidated for a single trial
on February 2, 2016; however, because General Sessions Court is not a court of record, there is
no written record confirming such consolidation [See Doc. 35-1, Ex. B, Page ID # 179; Ex. I;
Page ID # 202]. Consolidated or not, the same judge heard and decided both cases.
A. Motion To Dismiss
Lexington argues this case should be dismissed for failure to state a claim upon which
relief can be granted because Plaintiff's claims are barred by the doctrine of res judicata.2 State
law regarding res judicata is applied when determining whether a prior state court judgment bars
further claims in a federal forum. United States ex. rel Sheldon v. Kettering Health Network, 816
F.3d 399, 414 (6th Cir. 2016). "The doctrine of res judicata, also referred to as claim preclusion,
bars a second suit between the same parties or their privies on the same cause of action with
respect to all issues which were or could have been litigated in the former suit." Creech v.
Addington, 281 S.W.3d 363, 376 (Tenn. 2009).3 The doctrine "promotes finality in litigation,
prevents inconsistent or contradictory judgments, conserves judicial resources, and protects
litigants from the costs and vexation of multiple lawsuits." Boyce v. LPP Mortgage Ltd., 435
S.W.3d 758, 764 (Tenn. Ct. App. 2013).
A party asserting res judicata as a defense must show: "(1) that the underlying judgment
was rendered by a court of competent jurisdiction, (2) that the same parties or their privies were
involved in both suits, (3) that the same claim or cause of action was asserted in both suits, and
(4) that the underlying judgment was final and on the merits." Creech, 387 S.W.3d at 491. The
defense may be raised in a motion to dismiss for failure to state a claim if the plaintiff's
complaint shows on its face that the defense exists. Id. at 491-92. Further, courts may take
judicial notice of filings in other court proceedings and consider those documents without
converting a motion to dismiss to a motion for summary judgment. Malin v. Morgan Chase,
N.A., 860 F.Supp.2d 574, 578 (E.D. Tenn. 2012); Lee v. Dell Products, L.P., 236 F.R.D. 358,
361 (M.D. Tenn. 2006). It is clear on the face of Plaintiff's complaint that the issues raised in
Literally, "a thing adjudicated," res judicata refers to an affirmative defense barring the same
parties from litigating a second lawsuit on the same claim. Black's Law Dictionary 1312 (7th ed.
See also Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012) ("The doctrine of res judicata or
claim preclusion bars a second suit between the parties or their privies on the same claim with
respect to all issues that were, or could have been, litigated in the former suit.")
Plaintiff's federal lawsuit are the same issues already litigated in the two lawsuits filed in the
General Sessions Court in Hamilton County, Tennessee. Thus, this matter is properly before
the Court on a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(c).
As will be discussed below, the Court finds that Defendant has met each of the four
requirements and Plaintiff's lawsuit filed in this Court is barred by the doctrine of res judicata.
1. The judgments in the State Court Litigation and the Eviction Proceeding
were rendered by courts of competent jurisdiction
The judgment in the State Court Litigation was rendered by the General Sessions Court
of Hamilton County, Tennessee, which had jurisdiction pursuant to Tenn. Code Ann. § 16-15501. The Circuit Court of Hamilton County, Tennessee, which dismissed Plaintiff's appeal, had
jurisdiction of the appeal from the General Sessions Court pursuant to Tenn. Code Ann. § 16-10112. An appeal from a General Sessions Court case differs from other types of appellate
proceedings in that the circuit court does not review a general sessions court decision; rather, it
provides parties an entirely new trial as if no trial had yet been held and as if the case had
originated in circuit court. Ware v. Meharry Medical College, 898 S.W.2d 181, 184-86 (Tenn.
1995); Tenn. Code Ann. § 16-15-729. In addition, during the appeal to circuit court, the plaintiff
may amend the pleadings to add new causes of action. Id. Plaintiff Rajapakse could have
amended her complaint to add Fair Housing Act claims arising from her rental agreement and the
subsequent Eviction Proceeding with Royal Arms Apartments and Defendant Lexington, but she
did not do so. Finally, the General Sessions Court of Hamilton County had jurisdiction over the
Eviction Proceeding pursuant to Tenn. Code Ann. § 16-15-501. Thus, the judgments at issue
were rendered by courts of competent jurisdiction.
2. The same parties or their privies were involved in both suits
The same parties or their privies were involved in the previous state actions and this
action. In the State Court Litigation, Plaintiff named Royal Arms Apartments and Lexington
Asset Management as Defendants. In the Eviction Proceeding, the named plaintiff was Royal
Arms Apartments and the named defendant was Plaintiff, Samantha Rajapakse. In the case
pending before this Court, Plaintiff sued Royal Arms Apartments and Lexington Asset
Management [Doc. 26, Complaint at 1, Page ID # 11].
The same cause of action was asserted in all three suits
The two state court lawsuits and the present federal lawsuit all arise from the same series
of transactions, namely, Plaintiff's rental of, and subsequent eviction from an apartment at the
Royal Arms Apartments. In Creech v. Addington, 281 S.W.3d 363 (Tenn. 2009), the Tennessee
Supreme Court adopted a transactional approach in defining same "cause of action" when
evaluating a res judicata defense. Id. at 379-81. The Court stated:
When a valid and final judgment rendered in an action extinguishes the plaintiff's
claim . . . , the claim extinguished includes all rights of the plaintiff to remedies
against the defendant with respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose.
Id. at 379 (quoting the Restatement (Second) of Judgments § 24(1)). The Creech Court found
that the drafters of the Restatement used the concept of a transaction "in the broad sense,"
connoting a "natural grouping or common nucleus of operative facts." Id. at 380. Under the
transactional approach, parties who are given the opportunity to present their "entire
controversies" must do so or be barred. Creech, 281 S.W.2d at 381. Two suits, therefore, will
be deemed to be the same cause of action for purposes of res judicata when "they arise out of the
same transaction or series of connected transactions." Id. The rationale behind this transactional
approach to res judicata is to promote "the finality of litigation, consistency and stability of
judgments, judicial efficiency and the conservation of resources of both the courts and litigants."
Id. at 380-81.
On the other hand, "[t]he doctrine of res judicata 'extends only to facts at issue as they
existed at the time the judgment was rendered, and does not prevent a re-examination of the
same question between the same parties where in the interval the facts have changed or new facts
have occurred which may alter the legal rights or relations of the litigants.'" Id. (quoting Banks
v. Banks, 77 S.W.2d 74, 76 (Tenn. 1934)). Application of the doctrine of res judicata "should be
applied on a case-by-case basis, with sensitivity to the facts of each proceeding." Creech, 281
S.W.2d at 381. Res judicata should not be applied to bar a subsequent suit unless the plaintiff
"had the opportunity in the first suit to fully and fairly litigate the particular issue giving rise to
the second suit." Id. at 381-82.
The claims brought in the State Court Litigation are based largely on the same alleged
conduct as the claims in this federal court litigation.
The Court observes that Defendant
Lexington commenced the Eviction Proceeding while the State Court Litigation was pending;
however, Plaintiff's complaint in the State Court Litigation refers to eviction proceedings already
commenced by Lexington [Doc. 35-1, Ex. A, State Court Complaint, at 2, Page ID # 170].
Moreover, Plaintiff could have amended her complaint in General Sessions Court or in the
Circuit Court of Hamilton County to add any claims based on the Eviction Proceeding. Plaintiff
also could have amended her complaint in the General Sessions Court or the Circuit Court to add
claims brought under the Fair Housing Act alleging race discrimination and retaliatory eviction.
See 42 U.S.C.A. § 3613(a)(1)(A) ( "An aggrieved person may commence a civil action in an
appropriate United States district court or State court not later than 2 years after the occurrence
or the termination of an allegedly discriminatory housing practice . . . .") Plaintiff had the
opportunity to fully and fairly litigate all her current Fair Housing Act claims in the State Court
litigation. Further, a Fair Housing Act claim could have been raised as a defense in the Eviction
Proceeding. See, e.g., Newell v. Rolling Hills Apt., 134 F. Supp. 2d. 1026, 1038 (N.D. Iowa
2001) (finding that the "majority of states to consider the question recognize that the landlord's
discriminatory conduct . . . is a cognizable defense in a forcible entry and detainer action" and
listing cases that have addressed the issue). Because Plaintiff's Fair Housing Act claims arise out
of the same transactions as the State Court Litigation and Eviction Proceeding and could have
been brought as claims in those cases, they meet the "same cause of action" requirement for res
The Underlying Judgments are Final and on the Merits
In General Sessions Court, judgments were rendered against Plaintiff in both the State
Court Litigation (which she had filed) and the Eviction Proceeding (which Defendant had filed).
Plaintiff filed an appeal to Circuit Court with respect to the State Court Litigation. She did not
file an appeal of the General Sessions Court Judgment in the Eviction Proceeding.
judgments in both cases became final for different reasons, and will be discussed separately.
a) Judgment in the Eviction Proceeding
An Eviction Proceeding was filed by Defendant against Plaintiff in General Sessions
Court. A trial was held and a judgment was entered in favor of Defendant and against Plaintiff.
Tennessee Code Annotated § 27-5-108 permits either party to appeal a judgment of the General
Sessions Court by filing a Notice of Appeal within ten days of entry of the judgment. Plaintiff
did not file a Notice of Appeal of the judgment in the Eviction Proceeding. Because the
judgment entered in the Eviction Proceeding was not appealed to Circuit Court it became final.
b) Judgment in the State Court Litigation
The State Court Litigation was filed by Plaintiff against Defendant in General Sessions
Court. A trial was held in General Sessions Court, and again, a judgment was entered in favor of
Defendant and against Plaintiff. The Plaintiff filed her Notice of Appeal to the Circuit Court for
a de novo review.
After considering the case, the Circuit Court dismissed it under Tenn. R. Civ. P. 12.02(6)
citing res judicata.
The Circuit Court concluded that, because the same facts and legal issues
were presented in the Eviction Proceeding and the State Court Litigation, the final judgment in
the Eviction Proceeding (which was not appealed by Plaintiff) operated as a bar to litigating
those same claims through her appeal to Circuit Court of the General Sessions Court judgment in
the State Court Litigation. In finding that res judicata barred Plaintiff's appeal to Circuit Court,
the order, which was prepared by counsel and entered by the Circuit Court judge, was
improperly worded. In the order, the Circuit Court held that it "lacked jurisdiction to consider
the issues as those issues were res judicata in the General Sessions Court in Hamilton County,
Tennessee under Docket 16GS465."
The Circuit Court was correct in its determination that Plaintiff's claims were barred by
the doctrine of res judicata; however, it was incorrect in stating that the court lacked subject
If, indeed, the Circuit Court had lacked subject matter jurisdiction to
consider the case, it could not have found that res judicata applied to bar the cause of action.4
The courts derive their subject matter jurisdiction from the Constitution of Tennessee or from
legislative act. Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996);
Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). "Res judicata is a claim preclusion doctrine
that bars a second suit between the same parties or their privies with regard to issues that were
raised or could have been raised in the earlier proceeding." In re Estate of White, 77 S.W.3d
The only exception to this maxim would be where the court had previously determined it
lacked subject matter jurisdiction. Then it could decline to exercise subject matter jurisdiction
on the basis of res judicata. See Goeke v. Woods, 777S.W.2d 347, 350 (Tenn. 1989) (“A
judgment dismissing a suit for lack of jurisdiction does not preclude a party from litigating the
same cause of action in a court of competent jurisdiction; it does preclude the relitigation of the
issue of whether the first tribunal had jurisdiction.”) Such is not the situation in this case.
765, 770 (Tenn. Ct. App. 2001) (citing Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d
446, 459 (Tenn.1995)). The doctrine of res judicata is an affirmative defense, and determining
whether it applies in a given case is a question of law. Jackson v. Smith, 387 S.W.3d 486, 491
(Tenn. 2012). It is axiomatic that a court cannot consider a question of law if it lacks subject
matter jurisdiction to do so.
I conclude that the Circuit Court did, in fact, exercise subject matter jurisdiction to
adjudicate the State Court Litigation. It did so by finding that Plaintiff's causes of action in the
State Court Litigation were barred by the doctrine of res judicata because those issues had
already become final as a result of the judgment in the Eviction Proceeding. When the Circuit
Court dismissed the State Court Proceeding it had the option of entering an order, pursuant to
Tenn. R. Civ. P. 41.02(3), declaring that its decision was not an adjudication on the merits. The
Circuit Court declined to exercise that option. Consequently, the Circuit Court's dismissal of the
State Court Litigation on the basis of res judicata constituted a judgment on the merits.
At that point, the judgment with respect to the State Court Litigation was still not final. If
Plaintiff disagreed with the Circuit Court's judgment, she had the option of filing a Notice of
Appeal within 30 days of entry of that judgment to have the Tennessee Court of Appeals review
Plaintiff exercised that option and appealed the State Court Litigation to the
Tennessee Court of Appeals. The appellate court had full authority to overturn the decision of
the Circuit Court and to order a de novo trial with respect to all of the factual and legal issues that
Plaintiff raised in General Sessions Court and which she had endeavored to re-litigate in Circuit
Court. But, before the Court of Appeals could render a decision in her case, Plaintiff filed a
motion dismissing her appeal. Upon dismissal of the appeal, the judgment in the State Court
Litigation became final.
The underlying judgments in the Eviction Proceeding and the State Court litigation are
final. The issues that Plaintiff seeks to litigate before this Court were commenced in state court.
Through a combination of judicial decisions based on the merits and decisions based on
procedural deficiencies, judgments were entered in state court on the issues that Plaintiff seeks to
re-litigate in federal court. The state court judgments are final. The four requirements for the
application of res judicata have been met in this case. Therefore, I conclude that Plaintiff's
action is barred.
B. Motion To Amend Complaint
Plaintiff seeks to amend her complaint [Doc. 55] to add a claim for treble damages.
Since her underlying claims are barred, amendment to add a claim for treble damages is futile
and will be denied. See Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (holding proposed
amendments may be denied for futility) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiff's lawsuit is barred by the doctrine of res judicata, and Plaintiff's motion to
amend her complaint to add a claim for treble damages is futile. Accordingly, Defendant's
Motion to Dismiss pursuant to Fed. R. Civ. P. 12(c) is GRANTED and Plaintiff's Motion To
Amend pursuant to Fed. R. Civ. P. 15. is DENIED.
UNITED STATES MAGISTRATE JUDGE
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