Jackson v. WMC Mortgage, Corp. et al

Filing 32

ORDER rejecting 28 Report and Recommendations and recommitting matters to the Magistrate Judge. Signed by Chief Judge Jon Phipps McCalla on 7/31/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
OTIS JACKSON JR.,
Plaintiff,
v.
WCM MORTGAGE CORPORATION, et
al.,
Defendants.

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No. 2:12-cv-02914-JPM-cgc

ORDER REJECTING THE REPORT AND RECOMMENDATION AND RECOMMITTING
THE MATTERS TO THE MAGISTRATE JUDGE

Before the Court is the Magistrate Judge’s “Report and
Recommendation on Wells Fargo and MERS’s Motion for Summary
Judgment, Wilson & Associates, PLLC’s Motion to Dismiss, and
Plaintiff’s Motion for Leave to Amend Complaint” (the “Report
and Recommendation”), which was filed on June 10, 2013.
ECF No. 28.)

(See

In the Report and Recommendation, the Magistrate

Judge makes three recommendations:
Plaintiff’s Motion for Leave to Amend Complaint [(ECF
No. 19)] was filed before any of the Defendants had
been served, and, as such, Plaintiff is allowed to
amend his Complaint pursuant to [Federal Rule of Civil
Procedure] 15(a)(1)(A) without leave of Court.
Thus,
it is recommended that Plaintiff’s Motion for Leave to
Amend Complaint [(ECF No. 19)] be granted.
It is
further recommended that, based upon Plaintiff’s
filing of an amended pleading, [Wells Fargo Home
Mortgage]
and
[Mortgage
Electronic
Registration
Systems, Inc.’s] Motion for Summary Judgment [(ECF
No. 8)] and [Wilson & Associates, PLLC’s] Motion to
Dismiss [(ECF No. 11)] be dismissed as moot.
(See id. at 4.)

On June 20, 2013, Defendant Wilson & Associates, PLLC,
timely filed its Objections to Report and Recommendation (ECF
No. 29).

See Fed. R. Civ. P. 72(b)(2).

a response to those objections.

Plaintiff did not file

See id.

The other Defendants did not file any objections to the
Report and Recommendation.
For the reasons stated below, the recommendations in the
Report and Recommendation (ECF No. 28) are rejected.

The

matters addressed in the Report and Recommendation (id.) are
hereby recommitted to the Magistrate Judge with instructions to
proceed in accordance with the findings in this Order.
I.

BACKGROUND
This action involves a dispute over a foreclosure on a

private residence.

(See ECF No. 1 ¶ 1; ECF No. 8-1 at 2.)

On October 19, 2012, Otis Jackson Jr. (“Plaintiff” or
“Jackson”), who is proceeding pro se, filed a Complaint in this
Court to “prohibit[] Foreclosure sale and award damages.”
ECF No. 1 at 1.)

(See

In the Complaint, Jackson names as Defendants

WCM Mortgage Corporation (“WCM”), Mortgage Electronic
Registration Systems, Inc. (“MERS”), Arnold M. Weiss (“Weiss”),
Wilson & Associates, PLLC (“Wilson”), America’s Servicing
Company (“ASC”), and John Does 1-20.

(See id. ¶¶ 2-7.)

Jackson

also states that Wells Fargo Home Mortgage (“Wells Fargo”) is a
Defendant.

(See id. ¶ 9.)
2

On October 19, 2012, Jackson also filed a Motion to proceed
in forma pauperis (see ECF No. 2), which was granted on October
25, 2012 (see ECF No. 3).
Before the Court ordered the Clerk to serve the Complaint
on Defendants, some Defendants filed responsive pleadings and
dispositive motions.

Wilson filed a Verified Denial and Answer

on October 30, 2012 (see ECF No. 5), and a Motion to Dismiss on
December 19, 2012 (see ECF No. 11).

Wells Fargo, ASC, and MERS

filed an Answer on November 9, 2012 (see ECF No. 6), and a
Motion for Summary Judgment (the “Motion for Summary Judgment”)
on December 18, 2012 (see ECF No. 8).
On January 29, 2013, the Court ordered “the Clerk [to]
issue process for Defendants and deliver that process to the
marshal for service.”

(See ECF No. 16 at 2.)

The Court further

stated that Jackson had not timely responded to the Motion for
Summary Judgment or Wilson’s Motion to Dismiss and ordered
Jackson to show cause as to why those Motions should not be
granted.

(See id. at 3.)

On February 11, 2013, Jackson made four filings in the
Court.

First, he filed a Motion for Leave to Amend Complaint

“pursuant to Rule 15(a)(2) of the Federal Rules of Civil
Procedure.”

(See ECF No. 19 at 1.)

Second, Jackson filed a

Response to Wilson’s Motion to Dismiss that states that
“Plaintiff prays that this Honorable Court grants Defendant,
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[Wilson’s] Motion to Dismiss.”

(See ECF No. 20 at 2.)

Third,

Jackson filed a Response to the Order to Show Cause, in which he
requests that “Defendant’s (Wilson) Motion to Dismiss be
granted.”

(See ECF No. 21 ¶ 2.)

Fourth, Jackson filed a

Response in opposition to the Motion for Summary Judgment.

(See

ECF No. 22.)
The following Defendants were then served with process by
the United States Marshals Service:

Wilson on February 12, 2013

(ECF No. 26-2 at PageID 267);1 Wells Fargo on February 12, 2013
(ECF No. 26-1 at PageID 263); MERS on February 14, 2013 (ECF
No. 26-3 at PageID 271); WCM on February 19, 2013 (ECF No. 26-4
at Page ID 275); and Weiss on February 25, 2013 (ECF No. 26 at
PageID 259).
II.

ANALYSIS
Pursuant to federal statute,
[a] judge of the court shall make a de novo
determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made.
A judge of the court may
accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.

28 U.S.C. § 636(b) (2006); accord Fed. R. Civ. P. 72(b)(3).

1

When documents are not consecutively paginated, the Court refers to the Page
Identification (“PageID”) number that is at the top right of documents filed
on the Case Management/Electronic Case Files system.

4

Wilson makes two objections to the Report and
Recommendation.

Wilson first objects to the recommendation that

Wilson’s Motion to Dismiss (ECF No. 11) be dismissed as moot.
(See ECF No. 29 at 3.)

Wilson then objects to the

recommendation that the proposed First Amended Complaint (ECF
No. 19-1) be considered an amendment as a matter of course
pursuant to Federal Rule of Civil Procedure (“Rule”)
15(a)(1)(A).

(See ECF No. 29 at 3-5.)

The Court first addresses the Magistrate Judge’s
recommendation that Plaintiff’s proposed First Amended Complaint
(ECF No. 19-1) be considered an amendment as a matter of course.
The Court then addresses the Magistrate Judge’s remaining
recommendations.
A.

Plaintiff Should Not Be Allowed to Amend as a Matter
of Course Pursuant to Rule 15(a)(1).

The Magistrate Judge found that “Plaintiff’s Motion for
Leave to Amend Complaint was filed before any of the Defendants
had been served, and, as such, Plaintiff is allowed to amend his
Complaint pursuant to Rule 15(a)(1)(A) without leave of Court.”
(See ECF No. 28 at 4.)

Based on this finding, the Magistrate

Judge “recommend[s] that Plaintiff’s Motion for Leave to Amend
Complaint [(ECF No. 19)] be granted.”

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(See id.)

Wilson objects to the Magistrate Judge’s recommendation
because it believes that Plaintiff was no longer allowed to
amendment as a matter of course.
[T]here is no question that [Wilson] filed both an
answer as well as a motion to dismiss under Rule
12(b)(6). There is also no question that Plaintiff’s
Motion for Leave to Amend was not filed within 21 days
of [Wilson’s] motion to dismiss.
Consequently,
[Wilson] submits that Plaintiff’s Motion for Leave to
Amend should be viewed within the Court’s discretion
[pursuant to Rule 15(a)(2)], NOT as a matter of course
[pursuant to Rule 15(a)(1)].
(ECF No. 29 at 5.)
Rule 15(a)(1) states that
[a] party may amend its pleading once as a matter of
course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive
pleading is required, 21 days after service of
a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
See Fed. R. Civ. P. 15(a)(1)(A)-(B).
The Magistrate Judge’s recommendation would require the
Court to find that Rule 15(a)(1)(B) applies only after a
pleading has been served.

Wilson served an Answer (ECF No. 5)

and a Motion to Dismiss (ECF No. 11) more than twenty-one days
before Plaintiff’s Motion for Leave to Amend Complaint (ECF
No. 19).

Service of either of these documents could trigger

Rule 15(a)(1)(B) because the Answer (ECF No. 5) is a responsive
pleading and the Motion to Dismiss (ECF No. 11) is made pursuant

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to Rule 12(b).

The Magistrate Judge concluded, however, that

Plaintiff could amend as a matter of course because “Plaintiff’s
Motion for Leave to Amend Complaint was filed before any of the
Defendants had been served.”

(See ECF No. 28 at 4.)

Accordingly, the Magistrate Judge’s recommendation requires the
Court to find that Rule 15(a)(1)(B) is not triggered when a
party files a responsive pleading before being served.
The time periods in Rule 15(a)(1)(B), however, limit the
effect of Rule 15(a)(1)(A) and thus apply before service.

Prior

to 2009, “[s]erving a responsive pleading terminated the right
to amend.”

See Fed. R. Civ. P. 15 advisory committee notes

(2009 Amendments).

A responsive pleading thus limited the right

to amend as a matter of course regardless of whether the
pleading was served.

The 2009 Amendments to Rule 15(a)(1)

altered, but did not eliminate, the effect of a responsive
pleading:

“[T]he amended rule permits one amendment as a matter

of course in response to a responsive pleading.

The right is

subject to the same 21-day limit as the right to amend in
response to a motion.”

See id.

After a responsive pleading is

served, the right to amend as a matter of course is now
eliminated after twenty-one days instead of immediately.
Accordingly, even if a defendant serves a responsive pleading
before being served with the complaint, a plaintiff’s time to
amend will be determined by Rule 15(a)(1)(B).
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Furthermore, the time periods in Rule 15(a)(1)(B) are not
cumulative.

“If a responsive pleading is served after one of

the designated motions is served, for example, there is no new
21-day period.”

Fed. R. Civ. P. 15 advisory committee notes

(2009 Amendments).

Accordingly, a plaintiff serving a

responsive pleading before a motion to dismiss will have only
twenty-one days after being served with the responsive pleading
to amend as a matter of course.
An added complication in the instant case is that only some
Defendants filed responsive pleadings.

Prior to 2009, when a

responsive pleading terminated the right to amend as a matter of
course, if only some defendants filed a responsive pleading, “it
generally was held that a ‘responsive pleading’ had not been
served for purposes of Rule 15(a)(1) and plaintiff could amend
the complaint as of course with regard to those defendants that
had not answered.”2

6 Charles Alan Wright et al., Federal

Practice and Procedure § 1481 (3d ed. 2013); see, e.g., Williams
v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1291
(11th Cir. 2007) (“If the case has more than one defendant, and

2

At least one court has held that, “‘where a claim asserted by a plaintiff is
against a number of defendants jointly liable for their combined conduct or
acts, that to such a claim, “a responsive pleading” is not served until all
of the defendants have answered the claim, not just some of them.’” 6
Charles Alan Wright et al., Federal Practice and Procedure § 1481 (3d ed.
2013) (quoting Pallant v. Sinatra, 7 F.R.D. 293, 300 (S.D.N.Y. 1945)). The
Court does not consider this interpretation of “a responsive pleading”
because the interpretation does not appear to have been adopted in the United
States Court of Appeals for the Sixth Circuit or to have more than a very
limited influence in other federal circuit courts.

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not all have filed responsive pleadings, the plaintiff may amend
the complaint as a matter of course with regard to those
defendants that have yet to answer.”); Nat’l City Mortg. Co. v.
Navarro, 220 F.R.D. 102, 104 (D.D.C. 2004) (“If there is more
than one defendant, and not all have served responsive
pleadings, the plaintiff may amend the complaint as a matter of
course with regard to those defendants that have yet to
answer.”).

After the 2009 Amendments to Rule 15(a)(1), “if only

some defendants file responsive pleadings, plaintiff still
should be governed by the 21-day amendment period in Rule
15(a)(1)(A) for pleading amendments regarding the nonresponding
defendants.”

6 Charles Alan Wright et al., Federal Practice and

Procedure § 1481 (3d ed. 2013).

Plaintiff may thus be able to

amend as a matter of course regarding any Defendants that have
not served a responsive pleading.
Even if the United States Court of Appeals for the Sixth
Circuit had adopted this rule, however, Plaintiff seeks to amend
his claims against Defendants that have already served an
Answer.

Plaintiff’s proposed First Amended Complaint identifies

“Defendants” as Wells Fargo, ASC, and MERS and presents amended
claims against those parties.3

(ECF No. 19-1 ¶¶ 10, 12.)

3

Wells

Although Plaintiff identifies WMC, Wilson, and Weiss as “Parties” (ECF
No. 19-1 ¶¶ 2, 5-6), Plaintiff does not necessarily mean to bring claims
against these parties. For example, in his Response to Wilson’s Motion to
Dismiss, Plaintiff indicates that he does not intend to bring a claim against
Wilson in the proposed First Amended Complaint. (See ECF No. 20 at 1.)

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Fargo, ASC, and MERS, however, served an Answer (ECF No. 6) more
than twenty-one days before Plaintiff filed his Motion for Leave
to Amend Complaint (ECF No. 19).

Accordingly, Plaintiff should

not be able to amend his Complaint (ECF No. 1) as a matter of
course.
In the instant case, therefore, Plaintiff may not amend his
Complaint (ECF No. 1) as a matter of course pursuant to Rule
15(a)(1).

Plaintiff’s right to amend his Complaint (id.) as a

matter of course regarding Wilson terminated twenty-one days
after Wilson served its Answer (ECF No. 5).

Because Plaintiff

served his Motion for Leave to Amend Complaint (ECF No. 19) more
than twenty-one days after Wilson filed its Answer (ECF No. 5),
Plaintiff does not have the right to amend as a matter of course
regarding Wilson.

Furthermore, even if Plaintiff were able to

amend as matter of course regarding any Defendants that had not
filed a responsive pleading, Plaintiff’s proposed First Amended
Complaint (ECF No. 19-1) would affect Defendants that served an
Answer (ECF No. 6) more than twenty-one days before Plaintiff
served his Motion for Leave to Amend Complaint (ECF No. 19).
Accordingly, the Court finds that Plaintiff’s Motion for
Leave to Amend Complaint (id.) may be granted only pursuant to
Rule 15(a)(2).

See Ohio Police & Fire Pension Fund v. Standard

& Poor’s Fin. Servs. LLC, 700 F.3d 829, 844 (6th Cir. 2012)
(indicating that a court may act pursuant to Rule 15(a)(2) “if
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the plaintiff does not take advantage of opportunities to amend
the complaint as of right”).
The Magistrate Judge’s recommendation that Plaintiff be
allowed to amend as a matter of course is rejected.
B.

The Remaining Recommendations Are Rejected.

The Magistrate Judge’s recommendations regarding the Motion
for Summary Judgment (ECF No. 8) and Wilson’s Motion to Dismiss
(ECF No. 11) depend on Plaintiff being able to amend as a matter
of course:

“It is further recommended that, based upon

Plaintiff’s filing of an amended pleading, Wells Fargo and
MERS’s Motion for Summary Judgment [(ECF No. 8)] and Wilson’s
Motion to Dismiss [(ECF No. 11)] be dismissed as moot.”

(See

ECF No. 28 at 4.)
The Court, however, finds that Plaintiff is not entitled to
amend his Complaint (ECF No. 1) as a matter of right.
Part II.A.

See supra

Accordingly, the Magistrate Judge’s recommendations

regarding the Motion for Summary Judgment (ECF No. 8) and
Wilson’s Motion to Dismiss (ECF No. 11) are rejected.

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III. CONCLUSION
For the reasons stated above, the recommendations in the
Report and Recommendation (ECF No. 28) are REJECTED.

The

matters addressed in the Report and Recommendation (id.) are
hereby RECOMMITTED to the Magistrate Judge with instructions to
proceed in accordance with the findings in this Order.

IT IS SO ORDERED, this 31st day of July, 2013.
/s/ Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

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