Empire Title Services, Inc. v. Fifth Third Mortgage Co.

298 F.R.D. 528, 2014 WL 1326106, 2014 U.S. Dist. LEXIS 43544
CourtDistrict Court, N.D. Ohio
DecidedMarch 31, 2014
DocketNo. 1:10CV2208
StatusPublished
Cited by3 cases

This text of 298 F.R.D. 528 (Empire Title Services, Inc. v. Fifth Third Mortgage Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Empire Title Services, Inc. v. Fifth Third Mortgage Co., 298 F.R.D. 528, 2014 WL 1326106, 2014 U.S. Dist. LEXIS 43544 (N.D. Ohio 2014).

Opinion

MEMORANDUM OF OPINION AND ORDER

BENITA Y. PEARSON, J.

Pending is Plaintiffs Motion [for Leave] to Amend and for Reconsideration of Order of Dismissal (ECF No. 23) pursuant to Fed. R.Civ.P. 59(e), 60(b), and 15(a)(2). Plaintiff attached to the motion the proposed First Amended Class Action Complaint (ECF 23-2), as well as a redlined version (ECF No. 23-3).1 The Court has been advised, having reviewed the record, the parties’ briefs and the applicable law. For the reasons set forth below, the Court grants the Motion for Leave to Amend.

I.

On September 30, 2010, Plaintiff filed a class action civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) Complaint (ECF No. 1) against Defendants pur[529]*529suing six claims: two under 18 U.S.C. § 1962(a) (Counts I and II); two under 18 U.S.C. § 1962(c) (Counts III and IV); and two under 18 U.S.C. § 1962(d) (Counts V and VI). Defendants filed a Motion to Dismiss (ECF No. 13), and briefing closed in January 2011.2 Even though Defendants’ motion identified various deficiencies in the Complaint (ECF No. 1), including deficiencies under Fed.R.Civ.P. 9(b), Plaintiff chose not to seek leave to amend. Plaintiff did, however, state in its memorandum in opposition: “To the extent that any portion of the Complaint is deemed insufficient, any dismissal should be without prejudice and Plaintiff should be permitted to amend.” ECF No. 17 at PagelD # : 220.

After rejecting'many of the arguments in Defendants’ Motion to Dismiss (ECF No. 13), and noting that “Plaintiff successfully maneuvered many of the challenges pleaded by Defendants,” ECF No. 21 at PagelD #: 330, in March 2013 the Court dismissed the Complaint (ECF No. 1) on the ground that Plaintiff did not allege mailings or wire transmissions incident to the RICO scheme to defraud with particularity under Rule 9(b). The Court held that Plaintiff failed to allege that the alleged § 1962(a) violations caused it any direct injury. Accordingly, the Court dismissed Plaintiffs § 1962(a) claims (Counts I and II), as well as its § 1962(d) claims (Counts V and VI), which alleged a conspiracy to violate § 1962(a). ECF No. 21 at PagelD #: 319-21 and 324-25. As to the § 1962(e) claims (Counts III and IV), the Court held that Plaintiff failed to allege the predicate mail and wire fraud offenses with particularity, as Rule 9(b) requires in civil RICO cases. ECF No. 21 at PagelD #: 325-29. The Court stated:

However, in the only instance of specific details purportedly constituting mail or wire fraud, the Powers transaction, the Complaint also fails to allege that the HUD-1 form was mailed or transmitted by wire to the Powers. The Complaint adequately states the date that the Powers received the allegedly fraudulent documents, including the HUD-1 form, on March 24, 2009. ECF No. 1 at 21, at ¶ 74. But Empire does not allege that the documents were sent to the Powers; rather, it implies that the documents were handed to Powers at their home, at the time of the closing. ECF No. 1 at 21-22, ¶ 75. Instead, to satisfy the mailing requirement, Empire appears to allege that there are other documents that Fifth Third sent through the mails and wires that caused the HUD-1 forms to be presented to the borrowers. But Empire has not identified these other documents nor the time, place, content, and parties to those supposed communications. See Beard v. Worldwide Mortg. Corp., 354 F.Supp.2d 789, 802 (W.D.Tenn.2005) (“Loose references to mailings and telephone calls in furtherance of a purported scheme to defraud will not do.” (quoting Jepson Inc. v. Makita Corp., 34 F.3d 1321, 1328 (7th Cir.1994))). In short, the Complaint piggybacks unidentified mailed and wired documents onto the one identified but un-mailed or'transmitted by wire HUD-1 form, in an effort to satisfy the pleading with particularity requirement inherent in mail and wire fraud. Empire does not cite legal authority upon which such a theory may comfortably rest. The heightened pleading requirements of Rule 9(b) are, therefore, not satisfied, and the complaint must be dismissed.

ECF No. 21 at PagelD # : 328-29 (footnote omitted). In addition, the Court held that Plaintiffs allegations did not support § 1962(c) claims based upon transportation of money predicates. ECF No. 21 at Pa-gelD # : 324. The Court also contemporaneously entered a Judgment Entry (ECF No. 22) and closed the case.

Rather than appealing to the United States Court of Appeals for the Sixth Circuit, Plaintiff timely3 moves this Court to reopen [530]*530the ease and for leave to amend its complaint or, in the alternative, for reconsideration of the Court’s determination that Plaintiff failed to satisfy Rule 9(b) in the original complaint. According to Defendants, Plaintiffs motion challenges only the Court’s ruling regarding the § 1962(c) claims, and challenges only that portion of the ruling addressing Rule 9(b). See ECF No. 25 at PagelD # : 468.

II.

Underscoring the strong preference for deciding eases on the merits, the Sixth Circuit has held that it is not appropriate to dismiss even improperly pled claims with prejudice without giving the party an opportunity to correct the pleading deficiency. As Plaintiff correctly notes, “where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir.2003) (internal citations and quotation marks omitted). ECF No. 23-1 at PagelD # : 351 n. 3. Here, the Court previously dismissed the entire action where Plaintiff had not previously amended the complaint. Thus, Plaintiff did not have its “one chance” to amend its complaint to allege specific, individualized mailings and wire transmissions undertaken in furtherance of the RICO scheme to defraud. The memorandum in support of the within motion (ECF No. 23-1 at PagelD # : 343-47) describes “the highly detailed, specific, and individual allegations of mailings and wirings undertaken in furtherance of the scheme to defraud” included in the proposed First Amended Class Action Complaint (ECF 23-2). ECF No. 27 at PagelD #: 485. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222, (1962) (holding the Court of Appeals erred in affirming the district court’s denial of plaintiffs motions to vacate the judgment and to amend the complaint).

In other contexts where particularity in pleading fraud is required, courts have recognized that “leave to amend is particularly appropriate where the complaint does not allege fraud with particularity.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.2002) (securities case) (citing Chill v. General Elect.

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298 F.R.D. 528, 2014 WL 1326106, 2014 U.S. Dist. LEXIS 43544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empire-title-services-inc-v-fifth-third-mortgage-co-ohnd-2014.