McLarnon v. Deutsche Bank Nat'l Trust Co., Civil Action No. 13-12815-FDS
| Decision Date | 25 February 2014 |
| Docket Number | Civil Action No. 13-12815-FDS |
| Parties | EDWARD S. McLARNON, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certifications, Series 2007-5, ABLITT LAW GROUP, GARRY INGE, KATHE TUTTMAN, MIDDLESEX SUPERIOR COURT, MARINOSCI LAW GROUP, CHRISTINE BENWAY, BRIAN KISER, LEE G. JOHNSON, PAUL YEE, PAUL BURKE, JANE DOE, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, MALDEN DISTRICT COURT, and COMMONWEALTH OF MASSACHUSETTS, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR DEFAULT
AND DEFENDANTS' MOTIONS TO DISMISS
This action appears to arise from a mortgage foreclosure. Plaintiff Edward S. McLarnon, acting pro se, contends that defendants violated his constitutional rights and various federal statutes.
The complaint is 43 pages long, and somewhat rambling and difficult to follow. Plaintiff alleges that Deutsche Bank National Trust Company, its employees, and its attorneys wrongfully foreclosed on his home and evicted him. He contends that during the foreclosure and eviction proceedings in state court, the judges and court staff did not allow him to present evidence, filemotions, or make a statement on the record. Plaintiff also contends that the Commonwealth of Massachusetts is liable for the actions of the judges and court staff on theories of failure to train and failure to supervise.
The complaint alleges counts under 28 U.S.C. § 1983; under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.; for a declaratory judgment that a state Supreme Judicial Court decision is unconstitutional; for "judicial hate crimes"; and for "pendent state issues such as attorney fraud, forgery, slander, etc." Beyond the six listed counts, the complaint appears to assert additional claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; various criminal statutes (18 U.S.C. §§ 3, 4, 241, 242, 249, 371, 1341, 1503, 1623, 2381, 2382); the False Claims Act, 31 U.S.C. § 3729 et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and state common law. The complaint seeks compensatory and punitive damages, declaratory relief, and injunctive relief, including an order that this Court vacate the foreclosure order and eviction judgment.
Defendants each have moved to dismiss the claims under Fed. R. Civ. P. 12(b). Defendant Marinosci Law Group has moved, in the alternative, for a more definite statement under Fed. R. Civ. P. 12(e), and defendant Ablitt Law Group, P.C., has moved, in the alternative, for a stay. Plaintiff has moved for default as to Ablitt Law Group.1 For the reasons set forth below, defendants' motions to dismiss will be granted and plaintiff's motion for default will be denied.
The following facts are presented as stated in the complaint and in documents that are uncontested or referred to in the complaint.
On May 14, 2007, McLarnon obtained a loan on a property in Malden, Massachusetts, and granted a mortgage on that property. The mortgage was held as of 2008 by Mortgage Electronic Registration Systems, Inc. ("MERS"), as a nominee for American Brokers Conduit. On August 1, 2008, McLarnon defaulted under the terms of the mortgage. On May 14, 2009, MERS assigned the mortgage to Deutsche Bank National Trust Company, as Trustee for the HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-05 ("Deutsche Bank"). The complaint alleges that the assignment was fraudulent because it was "robo-signed" with the name "Linda Green" and because there are gaps in the assignment chain.
On August 13, 2009, Deutsche Bank filed an action under the Soldiers' and Sailors' Civil Relief Act of 1940 in Middlesex Superior Court seeking authority to foreclose on McLarnon's mortgage. McLarnon alleges that he was not served with a notice of sale and that Deutsche Bank forged his signature on a U.S. Postal Service return receipt. However, according to Deutsche Bank, service was accomplished by publication, and McLarnon has admitted that he is not entitled to the protections of the Act. Representing Deutsche Bank in that action were Brian Kiser and Christine Benway of the Marinosci Law Group (collectively, the "Marinosci defendants") and Amanda Califano of Ablitt/Scofield PC ("Ablitt Law Group"). On December 21, 2009, Justice Garry Inge entered an order of default against McLarnon for failure to appear. McLarnon moved on January 22, 2010, to vacate that order, but Justice Thomas Billings held that service was proper and denied the motion. On July 9, 2013, he moved again to vacate the judgment, and simultaneously filed motions to compel and for special relief. Justice Kathe Tuttman held a hearing, during which, according the complaint, she refused to allow one of McLarnon's experts to testify. Justice Tuttman then denied the motions. McLarnon's appeal of those orders to the Massachusetts Appeals Court remains pending.
Meanwhile, on January 25, 2011, Deutsche Bank exercised its right to a statutory powerof sale and foreclosed on the property. On October 19, 2012, Deutsche Bank recorded a foreclosure deed with an attached affidavit of sale, which granted it title to the property.
Deutsche Bank contends that on February 19, 2013, it served McLarnon with a notice to quit the property. On March 4, 2013, after McLarnon did not leave, Deutsche Bank initiated an eviction proceeding by summary process in the Malden District Court. The bank again was represented by the Marinosci defendants. The court granted McLarnon a ninety-day stay on the ground that he was undergoing several surgeries in early 2013. The complaint alleges that McLarnon attempted to file a motion in the eviction proceeding, but that Justice Paul Yee and court clerk "Paul Burke" refused to docket the motion because it was not properly captioned.2 According to the complaint, Justice Yee told McLarnon that pro se litigants, such as himself, are held to the same standard as attorneys.
Justice Antoinette Leoney held a bench trial on August 22, 2013, during which, according to the complaint, she did not allow McLarnon to submit evidence of his disability. She then entered a judgment of possession in favor of Deutsche Bank and awarded damages. According to the complaint, the clerk and court officer at the trial refused to identify themselves, the clerk shut off the recorder so that McLarnon could not make a statement on the record, and an unknown person (John Doe #3) shouted at McLarnon. McLarnon has sought reconsideration of that ruling, but his requests have been denied.
The complaint also alleges that Justice Lee Johnson, when he was Register of the Middlesex Probate and Family Court, terminated McLarnon's parental custody rights over his son. It further alleges that all the defendants conspired to foreclose on McLarnon's property and evict him.
On November 7, 2013, McLarnon filed the present action pro se in this Court. The Marinosci defendants, Deutsche Bank, the Commonwealth defendants (the Malden District Court; the Middlesex Superior Court; Justices Inge, Tuttman, Johnson, and Yee; court clerks Burns, Jane Doe, and John Does 1 through 3; and the Commonwealth of Massachusetts), and Ablitt Law Group filed motions to dismiss the complaint. On January 17, 2014, McLarnon moved for default judgment as to Ablitt Law Group.
On a motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).
A document filed by a pro se party "is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted). See also Fed. R. Civ. P. 8(e)("Pleadings must be construed so as to do justice."). The complaint does not make entirely clear the causes of action and against which defendants they are alleged. The Court has endeavored to make sense of the allegations, reading broadly the pro se complaint and other submissions. Global issues will be addressed first, followed by particular issues.
Justices Inge, Tuttman, Johnson, and Yee and court staff Burns, Jane Doe, and John Does 1 through 3 assert that the complaint must be dismissed as to them because they are entitled to absolute immunity.3
A judicial officer is entitled to immunity from civil suit when exercising his or her judicial authority. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Bradley v. Fisher, 13 U.S. (13 Wall.) 335 (1872). Unless there was a clear absence of jurisdiction over the subject matter before him at the time he took the challenged action, immunity attaches to the officer. Mireles v. Waco, 502 U.S. 9, 12 (1991). Absolute immunity extends not just to...
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