Paselk v. Bayview Loan Servicing, LLC et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court. Defendants' Motion to Dismiss the Second Amended Complaint 36 is GRANTED and Defendants' Motion to Dismiss the First Amended Complaint 26 is DENIED as moot. The complaint is hereby DISMISSED WITH PREJUDICE and any motion not previously ruled on is DENIED. Signed by Judge Robert W. Schroeder, III on 11/14/16. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CAROL PASELK,
Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC
et al.
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 6:16-cv-77

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Carol Paselk initiated this civil action on February 23, 2016. This civil action
was thereafter referred to United States Magistrate Judge John D. Love. On August 23, 2016,
Judge Love issued a Report and Recommendation, recommending that the undersigned grant
Defendants’ Motion to Dismiss the Second Amended Complaint (Doc. No. 36), and deny
Defendants’ Motion To Dismiss the First Amended Complaint (Doc. No. 26) as moot. (Doc. No.
45.) Plaintiff has filed objections seeking reconsideration of the Magistrate Judge’s Report and
Recommendation. (Doc. No. 49.)

In addition, Defendant Bayview Loan Servicing, LLC

(“Bayview”) filed an objection to the Magistrate Judge’s recommendation that Bayview’s
request for a pre-filing injunction be denied. (Doc. No. 47.) The Court reviews the objected-to
findings and recommendations of the Magistrate Judge de novo.
First, as to Plaintiff’s objections, the primary objection raised by Plaintiff is that the
Magistrate Judge improperly disposed of Plaintiff’s right to a trial by jury. (Doc. No. 49 at 2.)
Here, the Magistrate Judge recommended dismissal of certain of Plaintiff’s claims for failure to

state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). The Federal Rules of Civil Procedure provide such a mechanism for the dismissal of
claims and Plaintiff has not stated any legitimate challenge to the rule. In addition, where the
Magistrate Judge considered matters outside of the pleadings, he properly converted the
consideration of those issues to Rule 56 review. Federal Rule of Civil Procedure 12(d)
specifically provides for such consideration, and the Court finds the course of action taken by the
Magistrate Judge proper where Defendants’ res judicata and collateral estoppel defenses required
consideration of, at a minimum, Plaintiff’s prior complaint and the prior orders of the court.
Plaintiff also objects that Judge Love did not have jurisdiction to issue his Report and
Recommendation and that it is therefore void. (Doc. No. 49 at 3.) Plaintiff’s objection appears to
be a challenge to the Magistrate Judge’s authority and ability to issue a Report and
Recommendation on the dismissal of claims. However, pursuant to 28 U.S.C. § 636(b)(1)(A)(B), the Magistrate Judge is expressly authorized to set forth proposed findings of fact and
recommendations as to the disposition of motions for failure to state a claim upon which relief
can be granted and summary judgment. The statute provides for an objection period during
which either side can raise objections that are presented to the Court for de novo review. 28
U.S.C. § 636(b)(1)(C). Here, the Magistrate Judge has provided those recommendations to the
Court via his Report and Recommendation (Doc. No. 45) as he is authorized by statute to do. For
these reasons, the Court finds Plaintiff’s objections to be without merit and OVERRULES those
objections.
As to Bayview’s objections, Bayview objects to the Magistrate Judge’s recommended
denial of Bayview’s request for a pre-filing injunction. (Doc. No. 47 at 1.) “In determining
whether it should impose a pre-filing injunction ... a court must weigh all the relevant

2

circumstances, including the following four factors: ‘(1) the party’s history of litigation, in
particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the
party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the
extent of the burden on the courts and other parties resulting from the party’s filings; and (4) the
adequacy of alternative sanctions.’” Qureshi v. United States, 600 F.3d 523, 527 n.2 (5th Cir.
2010) (alteration in original) (quoting Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th
Cir. 2008)).
While the Magistrate Judge did not expressly consider each factor in his Report and
Recommendation, he implicitly considered these factors in making his determination by
considering the history between the parties, the merit of the claims asserted, and Plaintiff’s
interactions with the courts. Considering each of these factors, the Court does not find that a prefiling injunction is warranted. As the Magistrate Judge explained, this is the second action
between these parties in this District. (Doc. No. 45 at 2–3.) Given that Plaintiff is proceeding
pro se, it is not unreasonable to believe that she did not understand that by filing another lawsuit
her claims would be barred by the legal doctrines of collateral estoppel and res judicata. Indeed,
this is only Plaintiff’s first attempt to refile certain claims as to this party, and this is the first
action in which she was notified that her claims are barred by those doctrines given the
resolution of her previous suit. Similarly, while the Magistrate Judge noted the excessive filings
of Plaintiff in this action, the Magistrate Judge also took action to manage those filings and
streamline this action so that it was not unduly burdensome for the court or the parties to
manage. See Doc. No. 45 at 13–14. Here, a speedy and efficient resolution dismissing these
claims at the outset of the case was presented and warranted given the circumstances. For these

3

reasons, the Court agrees with the Magistrate Judge’s recommendation that the request for the
.
pre-filing injunction be denied.
Therefore the Court hereby adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of the Court. Accordingly, Defendants’ Motion to Dismiss the
Second Amended Complaint (Doc. No. 36) is GRANTED and Defendants’ Motion to Dismiss
the First Amended Complaint (Doc. No. 26) is DENIED as moot. It is further ORDERED that
the complaint is hereby DISMISSED WITH PREJUDICE and that any motion not previously
ruled on is DENIED.
SIGNED this 14th day of November, 2016.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

4