Derisme v. Hunt Leibert Jacobson P.C.

• Decision Date: 23 July 2012
• Docket Number: Civil Action No. 3:10cv23(VLB).
• Citation: 880 F.Supp.2d 311
• Court: U.S. District Court — District of Connecticut
• Parties: Fabiola DERISME, Plaintiff, v. HUNT LEIBERT JACOBSON P.C., Defendant.

880 F.Supp.2d 311

Fabiola DERISME, Plaintiff,

v.HUNT LEIBERT JACOBSON P.C., Defendant.

Civil Action No. 3:10cv23(VLB).

United States District Court,

D. Connecticut.

July 23, 2012.

Fabiola Derisme, Easton, CT, pro se.

Geoffrey K. Milne, Nicole L. Barber, Hunt Leibert Chester & Jacobson, Hartford, CT, for Defendant.

MEMORANDUM OF DECISION GRANTING DEFENDANTS' [DKT. # 170] MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S [DKT. # 174] CROSS MOTION FOR SUMMARY JUDGMENT

VANESSA L. BRYANT, District Judge.

The Plaintiff, Fabiola Is Ra El Bey,¹ proceeding pro se, brought this suit alleging violations of the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. §§ 42–110b(a) and—110g(a), against Defendant Hunt Leibert Jacobson, PC, a Connecticut-based law firm (“Hunt Leibert”) in connection with a pending foreclosure action in Connecticut Superior Court. Pending before the Court is Hunt Leibert's motion for summary judgment and Plaintiff's cross motion for summary judgment. For the reasons set forth below, Defendants' motion for summary judgment is granted and Plaintiff's cross-motion is denied.

Procedural Background

For the sake of clarity, the Court summarizes the protracted procedural history of this case. This is the second of two substantially similar civil actions that the pro se Plaintiff has filed in this Court against Defendant Hunt Leibert in connection with two pending state foreclosure actions. See Derisme v. Hunt Leibert Jacobson, PC, No. 3:10–cv–244(VLB) (D.Conn. Filed February 19, 2010). These cases arise out of the Defendants' representation of lenders in foreclosure actions filed in the Connecticut Superior Court against the Plaintiff. The Court has recently ruled on Hunt Leibert's motion for summary judgment and Plaintiff's cross-motion for summary judgment in the other matter which involved many of the same arguments and issues. See Derisme, No. 3:10–cv–244(VLB), Docket entry 308.

On January 7, 2010, Plaintiff filed the instant lawsuit. See [Dkt. # 2]. Although not a model of clarity, the original complaint clearly asserted an FDCPA claim. On January 22, 2010, Hunt Leibert filed its First Motion to Dismiss. See [Dkt. # 8]. In support of the First Motion to Dismiss, Hunt Leibert asserted that process and service of process had been insufficient; that the Complaint failed to state a claim for relief under the Truth in Lending Act (“TILA”); and that the Court lacked subject matter jurisdiction under the Colorado River abstention doctrine, see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), due to the pending state-court foreclosure action. See [Dkt. # 9]. Rather than immediately responding to the First Motion to Dismiss, Plaintiff corrected her early procedural mistake on January 25, 2010 by properly serving Hunt Leibert. She then filed her First Motion to Amend on February 19, 2010. Because the Federal Rules of Civil Procedure permit a party to amend her complaint once as a matter of course within 21 days after service of a Rule 12(b) motion, seeFed.R.Civ.P. 15(a)(1), the Court granted the First Motion to Amend on February 24, 2010. See [Dkt. 16, 17].

On February 25, 2010–the day after the Court granted the First Motion to Amend Plaintiff filed an Objection to Hunt Leibert's First Motion to Dismiss [Dkt. # 18]. In opposition to the First Motion to Dismiss, Plaintiff pointed out that she had already corrected the service of process problem; clarified that she was alleging an FDCPA claim rather than a TILA claim; and argued that her FDCPA suit against Hunt Leibert was sufficiently distinct from the state-court foreclosure action such that this Court need not abstain from exercising jurisdiction. See [Dkt. # 18 at p. 3–4, 8–9].

Plaintiff filed the First Amended Complaint on March 8, 2010. [Dkt. # 21]. In the First Amended Complaint, Plaintiff argues that this Court has subject matter jurisdiction based on both the presence of a federal-law question and on diversity of citizenship. She further asserts that this Court has jurisdiction “founded upon Public Ministry.” She repeats her FDCPA claim from the original Complaint, and adds a claim under the civil remedies provision of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1964; a claim under 42 U.S.C. § 1983; and a claim under 42 U.S.C. § 1985.

Although Plaintiff filed the First Amended Complaint on March 8, 2010, the parties continued to brief Hunt Leibert's First Motion to Dismiss until March 23, 2010. The Court held an in-court status conference regarding the First Motion to Dismiss on May 27, 2010. After the conference, the Court issued an Order denying the First Motion to Dismiss. Based on Plaintiff's representations during the conference, the Court concluded that Plaintiff no longer intended to press her claims under 42 U.S.C. §§ 1983 and 1985. See [Dkt. # 34]. During the conference, the Court directed Plaintiff to file a RICO Case Statement as required by the United States District Court for the District of Connecticut's Standing Order in Civil RICO Cases no later than June 28, 2010. Plaintiff complied with the Court's Order by filing her RICO Case Statement on June 28, 2010. See [Dkt. # 41]. The Court also informed Hunt Leibert that it was free to file a motion to dismiss the RICO claim asserted in the First Amended Complaint.

Hunt Leibert filed its Second Motion to Dismiss on June 10, 2010. See [Dkt. # 37]. Although Hunt Leibert's Second Motion to Dismiss is styled a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Hunt Leibert argues in support of the motion that this Court lacks federal question jurisdiction because the First Amended Complaint fails to state any federal-law claim for relief. See [Dkt. # 37 at p. 2]. Plaintiff has had numerous opportunities to respond to both arguments and has filed several voluminous memoranda addressing both arguments. See, e.g., [Dkt. # 53]. The Court therefore construes the Second Motion to Dismiss as a consolidated motion asserting both lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6). Hunt Leibert also filed a Motion for a Protective Order to stay discovery along with the Second Motion to Dismiss; the Court granted that motion on July 8, 2010. See [Dkt. 38, 44].

Plaintiff filed her Second Motion to Amend on July 6, 2010, and attached a proposed Second Amended Complaint which is the operative complaint. See [Dkt. # 42]. In the Second Amended Complaint, Plaintiff asserts that this Court has subject matter jurisdiction under the federal question jurisdiction statute, see28 U.S.C. § 1331, and under the diversity jurisdiction statute. See id. § 1332. She also asserts that this Court has subject matter jurisdiction under 28 U.S.C. § 1337, which providing that federal district courts have jurisdiction over civil actions “arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.” The Second Amended Complaint still asserts an FDCPA claim but does not explicitly assert any other federal-law claims. However, although the Second Amended Complaint does not specifically mention RICO, the Court infers from the fact that Fabiola Is Ra El Bey filed the Second Amended Complaint only a week after filing her RICO Case Statement that she still intends to pursue a RICO claim. The Second Amended Complaint also asserts that this Court has supplemental jurisdiction over related state-law claims, see18 U.S.C. § 1367, and adds a Connecticut Unfair Trade Practices Act claim.

On July 15, 2010, Hunt Leibert filed a Third Motion to Dismiss, despite the fact the Court had not yet ruled on either Hunt Leibert's Second Motion to Dismiss or Plaintiff's Second Motion to Amend. See [Dkt. # 46]. On July 19, 2010, the Court denied the Third Motion to Dismiss without waiting for a response from Plaintiff. The Court instructed Hunt Leibert that it should file a motion to supplement its briefing on the Second Motion to Dismiss if it wished to make any new legal arguments. See [Dkt. # 48]. The Court also instructed Hunt Leibert to direct any future briefing toward Plaintiff's Second Amended Complaint rather than toward the First Amended Complaint. On July 26, 2010, Hunt Leibert responded by filing an Objection to the Motion to Amend. See [dkt. # 50]. Plaintiff filed a Reply to the Objection on August 11, 2010. See [Dkt. # 53].

On August 25, 2010, the Court ruled on Hunt Leibert's Second Motion to Dismiss and held that Plaintiff's RICO claim failed as a matter of law and concluded that it would not permit Plaintiff to amend her RICO allegations because any such amendments would be futile. See Derisme v. Hunt Leibert Jacobson, PC, No. 10cv23, 2010 WL 3417858 (D.Conn. Aug. 25, 2010). The Court allowed Plaintiff's Second Amended Complaint but held that the only federal-law claim remaining was an FDCPA claim. The Court noted that the Second Amended Complaint also contained a CUTPA claim and indicated that while “Plaintiff is free to pursue the CUTPA claim as well as her FDCPA claim for the time being. However, under 28 U.S.C. § 1367(c), this Court may decline to exercise supplement jurisdiction over any remaining state-law claims if it dismisses all claims over which it has original jurisdiction.” Id. at *9.

On January 7, 2010, Hunt Leibert filed a Sealed Offer of Judgment pursuant to Federal Rule of Civil Procedure 68. [Dkt. # 69]. Hunt Leibert offered to concede liability and to pay Plaintiff $1,000 in statutory damages. Plaintiff rejected Hunt Leibert's Offer of Judgment on January 18, 2011. See [Dkt. # 72]. On January 11, 2011, Hunt Leibert filed a Fourth Motion to Dismiss for lack of jurisdiction. Hunt Leibert argues in support of its Motion to Dismiss that it has offered ...