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Hughes v. Nationwide Bank

United States District Court, W.D. Pennsylvania

July 9, 2019

JOSHUA HUGHES, Plaintiff,
v.
NATIONWIDE BANK, Defendant.

          MEMORANDUM OPINION

          Mark R. Hornak, Chief United States District Judge

         Pending before the Court is Plaintiff Joshua Hughes's latest motion, which is entitled "Plaintiffs Conditional Motion nunc pro tune for Leave to File Second Amended Complaint and Request Leave to Conduct Limited Discovery as to Jurisdiction, Or in the Alternative, Request to Transfer Case Pursuant to 42 Pa. C.S.A. § 5103(b)." (2d Mot. to Amend, ECF No. 60.) For the reasons stated below, the Second Motion to Amend is denied.

         Plaintiff initiated this action individually and on behalf of all others similarly situated against Defendant Nationwide Bank on September 17, 2018. (Op., ECF No. 56, at 3; Compl., ECF No. 1.) The Complaint states that "[t]his consumer protection class action seeks equitable, declaratory, and monetary relief to redress Defendant's pattern and practice to fail to provide commercially reasonable post-repossession consumer disclosure notices." (Compl. ¶ 2.)

         Defendant answered the Complaint and filed a Motion for Partial Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c)-seeking dismissal of Count II of Plaintiffs Complaint for failure to state a claim and lack of standing-and a Motion to Dismiss Plaintiffs Class Allegations under Rule 23(d)(1)(D). (Def.'s Answer, ECF No. 29; Def.'s Mot. for Partial J. and Mot. to Dismiss, ECF No. 30.) Instead of filing a response to the Motion for Partial Judgment, Plaintiff filed a flurry of motions seeking various forms of relief. (See Mot. to Determine Choice of Law, ECF No. 38; Mot. to Amend, ECF No. 45; Mot. to Stay, ECF No. 47.) The Court denied the Motion to Stay with the following Order:

Plaintiff has already been granted (over the objections of opposing counsel) limited discovery as provided for in this Court's January 8, 2019, Order [22]. Then, Plaintiff informed the Court that he intended to amend his Complaint [1] for the very purpose of "pleading the choice of law issue in the alternative" (ECF No. 41). Plaintiff now seeks more discovery on the issue of choice of law in order to respond to a motion that would become moot if Plaintiff is granted leave to file an amended complaint. Plaintiffs most recent request for another substantial deviation from the Federal Rules of Civil Procedure is therefore denied. At this juncture, Defendant's response to the Motion to Amend/Correct [45] remains due on or before 04/02/2019. Plaintiff shall not file a reply to his Motion to Determine Choice of Law [38] until the Court has resolved [45], should [38] remain live. While the Court provided Plaintiff some leeway to gather information about his case prior to formal discovery, the Court intends to manage this case in accordance with the Federal Rules of Civil Procedure: complaint, Rule 12 response, discovery-in that order, absent good cause, which (at this point) Plaintiff has not demonstrated.

(Order, ECF No. 48.)

         In a detailed Opinion, the Court denied Plaintiffs Motion to Amend. First, the Proposed Amended Complaint ("PAC") failed to adequately plead subject-matter jurisdiction. While Plaintiffs Initial Complaint (ECF No. 1) asserted subject-matter jurisdiction on the basis of diversity jurisdiction under 18 U.S.C. § 1332(a) and (d), the PAC only asserted subject-matter jurisdiction under 18 U.S.C. § 1332(d), commonly referred to as "CAFA jurisdiction."[1] The Court sua sponte concluded that the PAC failed to establish CAFA jurisdiction because it merely alleged that "at least one class member is a citizen of a different state than Defendant." (ECF No. 45-1 ¶ 24.)) But, there were no allegations of the citizenship of any class member, including Plaintiff, rendering the basis of CAFA jurisdiction "entirely conclusory." Carter v. Health Port Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016). Because the PAC failed to establish the citizenship of any purported class member or even Plaintiff himself, the PAC failed to establish subject-matter jurisdiction under § 1332(d). As such, the Court denied the Motion to Amend without prejudice to Plaintiff curing this simple error. However, this defect-failing to establish minimally diverse parties-also appeared in the Initial Complaint, and it is a defect that is similarly fatal to § 1332(a) diversity jurisdiction.[2] Because the Initial Complaint failed to plead subject-matter jurisdiction, the Court dismissed the Initial Complaint without prejudice to Plaintiff curing this "likely curable" defect. (Op. at 3.)

         Because the Court assumed that the subject-matter jurisdiction defect would be an "easy fix," the Court's Opinion went on to address the core arguments presented in the Motion to Amend, relating to what state law applies to Plaintiffs individual and class claims. Plaintiffs Complaint asserted that his own individual claims fall under the Pennsylvania UCC, but the Complaint's class description included individuals from other states, in which cases the equivalent statute in that state applies to the individual proposed class member's claims. (Op. at 4.) But Plaintiff sought leave to amend the Initial Complaint to plead that Ohio substantive law applies to his individual UCC claims and to amend the class and subclass descriptions and to include "alternative" classes and subclasses. (PAC ¶¶ 9, 26.)

         The Court ultimately concluded that Pennsylvania law applied to Plaintiffs individual claims. The Court Ordered that any Second Proposed Amended Complaint comply with that determination. (Op. at 22.) Furthermore, the Opinion included the following observations:

The Court instructs Plaintiff that he shall adhere to this Court's Local Rules .... The Court also notes that Plaintiff has thus far taken an incredibly freewheeling approach to this litigation. Some examples include responding to motions with motions (e.g., responding to ECF No. 30 with ECF No. 38), seeking a plethora of discovery before his own pleadings are even fixed (ECF Nos. 12, 47), filing notices of mediation out of compliance with the Local Rules (ECF Nos. 52, 53), and even filing a letter with the Court requesting amendments to the Court's Order granting Plaintiff the relief he himself sought (ECF No. 28). Whether these actions are tactics aimed at antagonizing the opposition or a product of simple yet brazen disregard for established procedures is unclear, but this Court has had enough of it and will continue to expect that the lawyers in this case will conduct themselves in accordance with applicable rules and standards.

(Op. at 16 n. 16.)

[I]t does strike the Court that Plaintiff does not yet have a full grasp on the scope and nature of his own proposed class action, which, in turn, makes it extremely difficult for Defendant to respond to such a pleading and, as already evident on this docket, drums up extensive motion practice on the pleadings. The Court granted Plaintiff some preliminary discovery to help Plaintiff shape his case, [3] but this Court will not further indulge Plaintiffs wash-rinse-repeat style of faulty pleadings. Plaintiff will be given the one final opportunity to amend provided by this Opinion.

(Id. at 22 n.21.)

         The Court granted Plaintiff "another, final, opportunity to move anew for amendment," with a Court-imposed deadline of May 31, 2019. (Op. at 22 (emphasis added); Order, ECF No. 57.) Plaintiff then filed his Second Motion to Amend (with no accompanying brief in ...


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