Pacaya v. Freedom Mortgage Corp. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elvis-Jack: Pacaya
v. Civ. No. 23-cv-279-LM
Freedom Mortgage Corp.
Orlans, PC
Federal Mortgage Home Loan Corp.
Grafton County Sheriff’s Dept.
REPORT AND RECOMMENDATION
Plaintiff Elvis-Jack:Pacaya has sued several defendants,
alleging violations of the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692-1692p (“FDCPA”) and the Real Estate Settlement
Procedures Act, 12 U.S.C. § 2605(e)(3) (“RESPA”). Before the
court are plaintiff’s motions for leave to file an amended claim
for permanent injunction (Doc. No. 28) and motion to amend
complaint (Doc. No. 29). Pursuant to LR 72.1, the motions have
been referred to the undersigned Magistrate Judge for a report
and recommendation. Construing the two motions as a single
request by plaintiff to amend his complaint, the court
recommends denial of the requested relief.
Standard of Review
Under Fed. R. Civ. P. 15(a), the court should freely give
leave to amend “when justice so requires.” This liberal
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standard does not mean, however, that every request for leave to
amend should be granted. See Manning v. Bos. Med. Ctr. Corp.,
725 F.3d 34, 60 (1st Cir. 2013). Rather, the court may deny a
request for leave to amend when “the request is characterized by
undue delay, bad faith, futility, or the absence of due
diligence on the movant's part.” Id. at 61 (internal quotation
marks and brackets omitted). A “futile” amendment is one that
“would fail to state a claim upon which relief could be
granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623
(1st Cir. 1996).
Discussion
Plaintiff filed his original complaint on May 19, 2023
(Doc. No. 1). The defendants each filed motions to dismiss
between June 12, 2023 and July 26, 2023. (Doc. Nos. 4, 6, 13,
and 23). The undersigned magistrate judge recommended granting
the motions filed by defendants Grafton County Sheriff’s Dept.
(Doc. No. 4) on July 14, 2023 (Doc. No. 18) and Orlans, P.C.
(Doc. No. 19) on July 19, 2023. Plaintiff’s objection to the
Grafton County motion did not address any legal issues, but only
asserted baseless claims against defense counsel. Plaintiff
filed no objection to the Orlans motion to dismiss. Plaintiff
having filed no objection to the two recommended dispositions,
the district judge approved both and granted the two motions.
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The motions filed by the two other defendants remain pending.
Plaintiff filed no substantive objection to either one.
Plaintiff asserts that he seeks to amend his complaint to
add “additional facts and information.” Pl. Mot. (Doc. No. 29)
at 1. A review of the filings, however, demonstrates that the
factual assertions within the six counts of the proposed amended
complaint are identical in every relevant respect to those in
the original complaint. The only discernable difference is that
plaintiff has added legal arguments within each count. It thus
appears to the court that plaintiff is attempting to redress his
prior failure to engage on the substantive issues raised by the
defendants’ motions and the court’s rulings.
As one defendant correctly observes, where a plaintiff
relies on allegations or arguments it could have made in earlier
pleadings in an attempt to render a motion to dismiss moot,
courts have discretion to deny leave to amend as dilatory and in
bad faith. Def. Obj. (Doc. No. 35) (citing Blakley v. Celadon
Grp., Inc., No. 1:16-cv-000351-LJM-TAB, 2017 WL 819715, at *3
(S.D. Ind. Mar. 2, 2017); see also Williams v. Savage, 559 F.
Supp. 2d 99, 108 (D.D.C. 2008) (where “plaintiffs could have
included these allegations earlier and because they have not
justified their delay, they have demonstrated a dilatory motive
or bad faith.”).
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Accordingly, the district judge should deny plaintiff leave
to amend his complaint. However, owing to plaintiff’s pro se
status, the court will construe the proposed amendments as
supplements to his objections to the remaining motions to
dismiss. Plaintiff’s failure to object to the prior report and
recommendations forfeited any objection to the dismissal of the
Grafton County Sheriff Dept. and Orlans, PC. See Fed. R. Civ. P.
72(b)(2); Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010).
Conclusion
Based on the foregoing, the district judge should deny
plaintiff’s motions to amend. (Doc. Nos. 28 and 29). Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R. Civ.
P. 72(b)(2). The fourteen-day period may be extended upon
motion. Only those issues raised in the objection(s) to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37, 617 F.3d at 564. Any issues not
preserved by such objection(s) are precluded on appeal. See id.
Failure to file any objections within the specified time waives
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the right to appeal the district court's Order. See Santos-
Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 5, 2024
cc: Elvis-Jack: Pacaya, pro se
counsel of record
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