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Louis Diez v. Washington Mutual Bank

September 21, 2011


The opinion of the court was delivered by: Seybert, District Judge:


Presently pending before the Court are the following motions filed by pro se Plaintiff Louis Diez: (1) a motion for joinder, filed on September 14, 2010 (Docket No. 36); (2) a motion to amend/correct/supplement the Complaint, filed on December 16, 2010 (Docket No. 51); (3) a motion requesting copies of all court transcripts, filed on April 13, 2011 (Docket No. 77); (4) a motion for reconsideration of the Court's Order denying the appointment of counsel, filed on May 26, 2011 (Docket No. 88); (5) a motion for "clarification" of the Court's prior orders denying consolidation, filed on August 18, 2011 (Docket No. 98); and (6) an appeal of Magistrate Judge Willaim D. Wall's Order closing discovery and denying Plaintiff's motion to compel, filed August 26, 2011 (Docket No. 99).

Also pending is a motion of Defendant JPMorgan Morgan Chase Bank s/h/a Washington Mutual Bank ("Defendant" or the "Bank") for summary judgment, filed on May 13, 2011. (Docket No. 83.)

For the following reasons, all of Plaintiff's requests are DENIED, and the Court RESERVES JUDGMENT on Defendant's motion for summary judgment.

I. Motions to Amend the Complaint

A. Procedural Background

Plaintiff commenced this action against the Bank on May 27, 2009 alleging that he "was repeatedly supplied with false material and oral misrepresentation (fraud) and/or misstatements by Washington Mutual (WaMu) when trying to refinance his current two mortgage loans." (Compl. ¶ III(f), Docket No. 1.) In his original Complaint, Plaintiff also makes allegations against the "seller and seller's parties" in connection with the purchase of his home in 2005. (Compl. ¶ III(a)-(e).) Neither the seller, who is never named or otherwise identified in the Complaint, nor any of the "seller's parties" are named as Defendants in the original Complaint. On March 19, 2010, the Bank filed its Answer, which raised, among other defenses, failure to join the FDIC, a necessary party. (Docket No. 14.)

Plaintiff submitted two letters to the Court on July 13 and 20, 2010, respectively, informing the Court that he intends to amend the Complaint to add the FDIC and others as defendants and seeking an extension of time to do so. (Docket Nos. 28, 34.) Judge Wall, in his July 22, 2010 Scheduling Order, gave the parties until December 16, 2010 to move to join new parties or otherwise amend the pleadings. (Docket No. 27.)

On September 14, 2010, Plaintiff filed a "[m]otion to join parties (Defendants) with additional complaints at the end" ("First Proposed Amended Complaint" or "FPAC"). (Docket No. 36.) Although labeled as a motion, the filing contains only a proposed amended complaint, with no accompanying motion or memorandum in support. The Bank filed its opposition to Plaintiff's "motion" on September 17, 2010, arguing that the FPAC must be denied because it would be subject to dismissal under Federal Rule of Civil Procedure 8. (Docket No. 38.)

On December 16, 2010, Plaintiff submitted another amended complaint titled, "Complaint and Summons (piggyback to Civil Action No. 09-cv-02390-JS)" ("Second Proposed Amended Complaint" or "SPAC"). (Docket No. 51.) Defendant filed its opposition on December 30, 2010, again arguing that the SPAC must be denied for violating Rule 8. (Docket No. 55.) The Second Proposed Amended Complaint is nearly identical to the First, with two minor differences: first, the SPAC adds an additional two Defendants (SPAC at 1-2); and second, the SPAC adds a forty-second count for defamation of character (id. at 66). Since, in all other regards, the two proposed amended complaints are word-for-word identical (albeit, sometimes in a slightly different order), the Court presumes that the SPAC supersedes the FPAC,*fn1 and DENIES AS MOOT Plaintiff's first motion to amend (Docket No. 36). For the reasons that follow, Plaintiff's second motion to amend is also DENIED.

B. Legal Standard

1. Federal Rule of Civil Procedure 15

Federal Rule of Civil Procedure 15 governs amendments to pleadings. A party may amend his pleading once as a matter of right within twenty-one days after service of that pleading or, if the pleading requires a response, within twenty-one days after he is served with his adversary's response or a motion under Federal Rule 12(b), (e), or (f). FED. R. CIV. P. 15(a).

All other amendments require either written consent from the other party or the Court's leave. Id.

Plaintiff is well outside the time during which he could have amended his Complaint as a matter of right, and Defendant does not consent to the amendment, so the issue here is whether justice requires permitting Plaintiff to amend his pleading. Leave to amend should be liberally granted, particularly to pro se litigants. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Notwithstanding Plaintiff's pro se status, however, "where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied." Schwamborn v. Cnty. of Nassau, 348 Fed. Appx. 634, 635, (2d Cir. 2009) (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999)). In this case, the Bank argues that Plaintiff's SPAC is futile because it violates Federal Rule of Civil Procedure 8. The Court agrees.

2. Federal Rule of Civil Procedure 8

Rule 8 provides that a complaint shall contain "a short and plain statement showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). "The statement should be plain because the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citing Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980)). "The statement should be short because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Id. (internal quotation marks and citation omitted).

"A complaint fails to comply with Rule 8(a)(2) if it is 'so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised." Struck v. U.S. House of Representatives, 68 Fed. Appx. 233, 235 (2d Cir. 2003) (quoting Salahuddin, 861 F.2d at 42); accord Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972) ("Complaints which ramble, which needlessly speculate, accuse, and condemn, and which contain circuitous diatribes far removed from the heart of the claim do not comport with these goals and this system; such complaints must be dismissed."); see also, e.g., Roberto's Fruit Market, Inc. v. Schaffer, 13 F. Supp. 2d 390, 395-96 (E.D.N.Y. 1998) (dismissing 71-page, 284 paragraph complaint for being "excessively long-winded and redundant" and for containing "unnecessary, vague and inflammatory language"); Infanti v. Scharpf, No. 06-CV-6552, 2008 WL 2397607, at *2 (E.D.N.Y. 2008) (dismissing a 90-page, 500-paragraph complaint described as a "chaotic jumble" of "tumultuous confusion" full of "rambling accusations and moral condemnation.")

C. Second Proposed Amended Complaint

It is clear that Plaintiff's SPAC fails to comply with

Rule 8. The SPAC spans seventy, single-spaced pages, names eight Defendants,*fn2 and fails to link any of these Defendants to any of the forty-two counts alleged.*fn3 This ...

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