Tyree v. U. S. Bank National Association et al
Filing
34
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, DENYING PLAINTIFFS MOTION TO AMEND, AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH. Signed by Judge S. Thomas Anderson on 11/16/2016. (Anderson, S.)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MAURICE TYREE,
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Plaintiff,
VS.
U.S. BANK NATIONAL
ASSOCIATION, et al.,
Defendants.
No. 16-2076-STA-dkv
ORDER ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE,
DENYING PLAINTIFF’S MOTION TO AMEND,
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
Before the Court is the United States Magistrate Judge’s Report and Recommendation
that the motion to dismiss of Defendant Wilson and Associates, PLLC (ECF No. 19) and the
motion for judgment on the pleadings of Defendants U.S. Bank National Association (“U.S.
Bank”) and Federal National Mortgage Association (“FNMA”) (“the U.S. Bank Defendants”)
(ECF No. 21) be granted.
Magistrate Judge Diane K. Vescovo submitted her Report and
Recommendation on July 22, 2016.
(ECF No. 29.)
Plaintiff has filed objections to the
Magistrate Judge’s Report (ECF No. 30) and a motion to amend his complaint. (ECF No. 31.)
The U.S. Bank Defendants have filed a response in opposition to Plaintiff’s motion to amend
(ECF No. 32), and Plaintiff has filed a reply to Defendants’ response. (ECF No. 33.) Having
reviewed the Magistrate Judge’s Report and Recommendation de novo and the entire record of
the proceedings, the Court hereby ADOPTS the Report and Recommendation in its entirety.
Defendants’ motion to dismiss and motion for judgment on the pleadings are GRANTED.
Additionally, Plaintiff’s motion to amend is DENIED.
Background
This is the second lawsuit filed by Plaintiff against U.S. Bank. The first lawsuit was filed
on June 20, 2014, and alleged that U.S. Bank had violated the Federal Debt Collection Practices
Act (“FDCPA”) and the Tennessee Consumer Protection Act (“TCPA”). Tyree v. U.S. Bank, et
al., No. 2:14-cv-02476-STA-dkv (W.D. Tenn. June 20, 2014). The complaint was dismissed
because Plaintiff failed to allege any facts indicating that U.S. Bank was a debt collector, failed
to set forth any plausible claims under the FDCPA, and did not state a claim for violation of the
TCPA. The dismissal was affirmed on appeal by the United States Court of Appeals for the Sixth
Circuit. On February 3, 2016, Plaintiff filed this lawsuit against the U.S. Bank Defendants and
against Wilson & Associates alleging violations of the FDCPA and the TCPA.
Report and Recommendation
In the Report & Recommendation, Magistrate Judge Vescovo found that the complaint
should be dismissed for failure to state a claim upon which relief can be granted and lack of
subject-matter jurisdiction. If a party objects within the allotted time to a Report and
Recommendation on a dispositive motion, as did Plaintiff, 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.”1 Parties must file specific objections. “T]he filing of vague,
general, or conclusory objections does not meet the requirement of specific objections and is
1
28 U.S.C. § 636(b) (1); see also Fed. R. Civ. P. 72(b).
2
tantamount to a complete failure to object.”2
“A general objection to the entirety of the
magistrate’s report has the same effects as would a failure to object.”3 Consequently, to the
extent that Plaintiff has made “vague, general, or conclusory objections,” such as recitations
from previous pleadings, those objections are waived, and the Court will consider only the
portions of the Report and Recommendation to which Plaintiff has made specific objections.
U.S. Bank Defendants
Regarding the U.S. Bank Defendants, Magistrate Judge Vescovo found that Plaintiff’s
references to FNMA in the complaint were insufficient to form the basis of a claim for a
violation of the FDCPA or the TCPA; several of Plaintiff’s allegations against U.S. Bank are
barred by the doctrine of res judicata; and those allegations against U.S. Bank that are not barred
by the doctrine of res judicata fail because they are legal conclusions with no factual support.4
As correctly noted by the Magistrate Judge, Plaintiff’s two references to FNMA, i.e.,
FNMA “is at all times stated herein a privately-owned federally chartered for profit enterprise,
and its main place of business is in Washington, D.C., the place where it was incorporates in
1934” and FNMA “routinely buys federally guaranteed home mortgages on the secondary
market and is qualified to do business in the STATE OF TENNESSEE,” are insufficient to
plausibly allege that FNMA violated the FDCPA or the TCPA.5
2
Cole v. Yukins, 2001 WL 303507 *1 (6th Cir. March 19, 2001) (citing Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995)).
3
Howard v. Sec’y of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
4
Plaintiff objects to the Magistrate Judge’s use of the word “appears” in construing the
allegations of his complaint (“From the attachments to his complaint … it appears to be an
attempt to stop a foreclosure sale of [his] property….” (Rep. & Rec., p. 2, ECF No. 29.)). (Obj.,
p. 5, ECF No. 30.) Because the complaint is vague, the Magistrate Judge was forced to construe
Plaintiff’s allegations, and “appears” was an appropriate word to use in so doing.
5
(Rep. & Rec., p. 9, ECF No. 29.) Plaintiff’s proffered amended complaint does not contain
any allegations against FNMA, which is a tacit admission that he has not stated a claim against
3
As for U.S. Bank, Tyree alleges that it violated the FDCPA by not making the proper
disclosures upon being assigned his Deed of Trust on March 2, 2012, and that the assignment of
the Deed of Trust was defective. The Magistrate Judge correctly determined that those events
and transactions occurred prior to the dismissal of Plaintiff’s first lawsuit, and, therefore, any
claims based on those events and transactions are barred by the doctrine of res judicata.6
Plaintiff cannot now re-litigate claims that were dismissed by the Court in the prior lawsuit.
Plaintiff also alleges that, after U.S. Bank acknowledged receipt of inquiries made by him
on October 12 and 15, 2015, it failed to respond and provide information required by 15 U.S.C. §
1692g(a)(1) and (a)(2). He also alleges violations of 15 U.S.C. §§ 1692c, 1692d, 1692e, 1692f,
1692g, and 1692f. Because those claims arose after the dismissal of the first lawsuit, the
Magistrate Judge determined that they were not barred by res judicata.7 This Court agrees with
that determination.
The Court also finds the Magistrate Judge’s determination that the non-
barred claims are not supported by any facts in the complaint to be well-supported by the
applicable law.8 Accordingly, the Court adopts the recommendation that all claims brought
against the U.S. Bank Defendants be dismissed.
Defendant Wilson & Associates
Although the Magistrate Judge rejected Defendant’s assertion that Plaintiff had not
adequately pled that it was a “debt collector” within the meaning of the FDCPA, she found that
Plaintiff had not sufficiently alleged that Defendant violated any of the FDCPA provisions.9
this defendant. (Mot. to Amend, p. 1, ECF No. 31.)
6
(Id. at p. 20.)
7
(Id. at p. 23.)
8
(Id. at p. 24.)
9
(Id. at pp. 13, 15-19.)
4
The Court has reviewed the allegations of the complaint, the Report and Recommendation, and
Plaintiff’s objections and finds that the Magistrate Judge correctly applied the applicable law to
Plaintiff’s claims against Defendant Wilson & Associates.
Thus, the Court adopts the
recommendation that all claims brought against Wilson & Associates be dismissed
Motion to Amend
Plaintiff moved for leave to amend his complaint on August 8, 2016.10 The scheduling
order that was entered in this matter on April 29, 2016, set July 1, 2016, as the deadline for
amending pleadings.11
Normally, motions for leave to amend are reviewed under the deferential standard of
Federal Rule of Civil Procedure 15, and the Court “should freely give leave when justice so
requires.12 However, the Court has substantial discretion and can deny the motion for leave
“based on undue delay, bad faith or dilatory motive or futility of amendment.”13 The Court may
also deny such a motion due to the “repeated failure [of the moving party] to cure deficiencies”
or because of “undue prejudice” to the non-moving party; but, in general, the mandate that leave
is to be “freely given ... is to be heeded.”14
A “different standard applies when a proposed amendment is so late that it would require
the modification of a Rule 16 scheduling order.”15 Rule 16 of the Federal Rules of Civil
Procedure permits the modification of a scheduling order only for “good cause” and with the
10
(Mot. to Amend, ECF No. 31.)
11
(Sched. Ord., p. 1, ECF No. 16.)
12
Fed. R. Civ. P. 15(a)(2).
13
Pedreira v. Ky. Baptist Homes for Children, 579 F.3d 722, 729 (6th Cir. 2009) (internal
quotation omitted).
14
Foman v. Davis, 371 U.S. 178, 182 (1962).
15
Korn v. Paul Revere Life Ins. Co., 382 F. App’x 443, 449 (6th Cir. 2010).
5
court’s consent.”16 The heightened standard “ensure[s] that at some point both the parties and
the pleadings will be fixed,” only subject to modification based upon a showing of good cause.17
Good cause is measured by the movant’s “diligence in attempting to meet the case
management order’s requirements.”
18
In considering “good cause,” the Court must also
consider - as one “consideration that informs” the analysis - whether the defendant would be
prejudiced by the amendment and the modification of the scheduling order.19
Even if no
prejudice is evident, the plaintiff still “must [ ] explain why he failed to move for the amendment
at a time that would not have required a modification of the scheduling order.”20 When the
plaintiff’s explanation for the delay is insufficient, it is appropriate for the Court to deny the
motion for leave to amend.21 Only if the plaintiff establishes “good cause” does the Court
proceed to the more permissive Rule 15(a)(2) analysis.22
Defendants argue that Plaintiff has not shown good cause for the amendment, that they
would suffer substantial prejudice if the Court were to grant the motion, and Plaintiff has not
otherwise met the Rule 15 factors. The Court agrees with Defendants that Plaintiff has not
shown good cause for the late amendment. In fact, Plaintiff has offered no explanation as to why
he did not file his amendment timely. Therefore, the Court need not look at the Rule 15 factors,
and Plaintiff’s motion to amend his complaint is denied.
16
Fed. R. Civ. P. 16(b)(4).
17
Leffew v. Ford Motor Co., 258 F. App’x 772, 777 (6th Cir. 2007).
18
Inge v. Rock Fin. Corp., 281 F.3d 613, 625–26 (6th Cir. 2002) (internal quotation omitted).
19
Korn, 382 F. App’x at 450.
20
Id.
21
Id.
22
Commerce Benefits Grp. v. McKesson Corp., 326 F. App’x 369, 376 (6th Cir. 2009).
6
Summary and Conclusion
Because Magistrate Judge Vescovo correctly determined that the motion to dismiss of
Defendant Wilson & Associates and the motion for judgment on the pleadings of the U.S. Bank
Defenants should be granted, Plaintiff’s objections are OVERRULED, and the Report and
Recommendation is ADOPTED, and Defendants’ motions are GRANTED. Plaintiff’s motion
to amend is DENIED because he has not shown good cause for failing to file the motion within
the deadline set by the scheduling order.
Appellate Issues
The court must also consider whether Plaintiff should be allowed to appeal this decision
in forma pauperis, should he seek to do so.
Pursuant to the Federal Rules of Appellate
Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper
status under Fed. R. App. P. 24(a).23 Rule 24(a) provides that if a party seeks pauper status on
appeal, he must first file a motion in the district court, along with a supporting affidavit.24
However, Rule 24(a) also provides that if the district court certifies that an appeal would not be
taken in good faith, or otherwise denies leave to appeal in forma pauperis, the party must file his
motion to proceed in forma pauperis in the Court of Appeals.25
The good faith standard is an objective one.26 The test for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any issue that is not frivolous.27 It
would be inconsistent for a district court to determine that Defendants are entitled to the
23
See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999).
24
Fed. R. App. P. 24(a)(1).
25
Fed. R. App. P. 24(a)(4)-(5).
26
Coppedge v. United States, 369 U.S. 438, 445 (1962).
27
Id.
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dismissal of the complaint but the action has sufficient merit to support an appeal in forma
pauperis.28 The same considerations that lead the court to grant Defendants’ motions and deny
Plaintiff’s motion to amend also compel the conclusion that an appeal would not be taken in
good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore,
DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full appellate
filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth
Circuit Court of Appeals within thirty (30) days.29
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: November 16, 2016
28
See Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983).
29
Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this court. A motion
to appeal in forma pauperis then should be filed directly in the United States Court of Appeals
for the Sixth Circuit. Unless he is specifically instructed to do so, Plaintiff should not send to
this court copies of documents intended for filing in the Sixth Circuit.
8
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