MARCIA MORALES HOWARD, District Judge.
In ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)), the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003)
A "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal") (internal citation and quotations omitted). Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," which simply "are not entitled to [an] assumption of truth." See Iqbal, 556 U.S. at 678, 680-81, 129 S.Ct. 1937. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
At the outset, the Court notes that the parties submitted several exhibits in support of, and in opposition to, the Motion to Dismiss. See generally Motion to Dismiss, Exs. A-D; Response, Exs. A-C. In addition, Chase National requests that the Court take judicial notice of "all proceedings and pleadings in the State Court Action (including the appellate proceedings...) pursuant to Rule 201, Federal Rules of Evidence." See Motion to Dismiss at 2. When a party moves to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and matters outside of the pleadings are presented to and not excluded by the court, the motion is ordinarily treated as if it were a motion for summary judgment under Rule 56. SFM Holdings, Ltd. v. Banc of Am. Sec.,
Upon review of the Motion to Dismiss and Response, the Court notes that most of the exhibits submitted are public records.
JPMorgan Chase Bank, N.A. (Chase Bank) filed a foreclosure action against the Beepots in the Circuit Court of the Fourth Judicial Circuit, in and for Clay County, Florida on February 24, 2009 (State Foreclosure Action).
On March 19, 2010, the Beepots filed another Motion for Relief from Summary Judgment (Second Motion for Relief From Judgment) in state court. See Motion to Dismiss, Ex. B. In the Second Motion for Relief From Judgment, the Beepots argued that the Foreclosure Judgment should be set aside "based on the discovery of new evidence," and alleged that Chase Bank "forged ... Alonzo Beepots' [sic] signature in paperwork associated with the mortgage transaction." Second Motion for Relief at 1. Additionally, the Beepots argued that Chase Bank failed to furnish copies of the rights of recession to [the Beepots], failed to provide statements of the maximum monthly payments on the mortgage transaction, failed to provide [the Beepots] with all applicable Truth in Lending disclosure statements, failed to provide [the Beepots] with correct HUD-1 statements and extended credit without regard to the payment ability of the borrower.
Id. at 2. The Beepots also alleged that Chase Bank violated specific provisions of TILA and of RESPA, and "breached the fiduciary duty owed" to the Beepots, and "an implied contractual covenant of good faith and fair dealing." Id.
While their Second Motion for Relief From Judgment was pending in state court, on May 12, 2010, the Beepots initiated in this Court the instant federal lawsuit against Chase National. See Complaint (Doc. 1). Although the Court struck their initial Complaint, see Order (Doc. 5), the Beepots filed an Amended Complaint (Doc. 6) on June 2, 2010. In it, the Beepots allege that they are "homeowners in Florida, residing in the home they own at 2420 Daniels Landing Drive, Orange Park, Florida 32003," and that they "purchased" the property on or about August 17, 2007. Amended Complaint ¶¶ 9, 10. They allege that Chase National is a "financial institution providing mortgages on real property" and that "[a]t all times relevant ... Defendant owned, brokered and/or serviced Plaintiffs' mortgage loan." Id. ¶ 2.
Meanwhile, on September 21, 2010, the state court held a hearing on the Second Motion for Relief from Judgment, and in an Order dated September 27, 2010, the state court granted the Beepots' Second Motion for Relief from Judgment. See Order on Defendants' Motion for Relief of Judement [sic] Entered on June 2, 2009 and Defendants Motion for Continuance (Doc. 13-3; Order Granting Relief). After noting that counsel for the Beepots appeared at the scheduled hearing, and that counsel for Chase Bank did not appear, the state court set aside the June 2, 2009 Foreclosure Judgment "based upon the grounds stated for relief" in the Beepots' Second Motion for Relief from Judgment. Id. On September 30, 2011, 2011 WL 4529604, this Court entered an Order staying the federal proceedings pending the resolution of the concurrent State Foreclosure Action. See Order (Doc. 43) at 25. The Court directed the parties to file joint status reports on the state proceedings every ninety days. Id.
While this case was stayed, matters proceeded in state court. Chase Bank filed a Motion for Rehearing and/or Reconsideration of the state court's Order Granting Relief, and after a hearing, the state court entered an order on February 14, 2012, granting Chase Bank's Motion and vacating the Order Granting Relief. See Joint Status Report (Doc. 46). On May 11, 2012, the Beepots filed a Motion for Leave to Amend Defendants' Answer and File Defendants' Counterclaim. See State Foreclosure Docket. The state court held a hearing on the Beepots' Motion for Leave to Amend, as well as their Second Motion for Relief, and on May 31, 2012, the court entered an order denying these motions and scheduling a foreclosure sale for July 18, 2012. See Joint Status Report (Doc. 52); Motion to Dismiss, Ex. C.
On June 11, 2012, the Beepots filed a Motion for Rehearing which the state court promptly denied, and on June 28, 2012, the Beepots filed a Notice of Appeal. See Joint Status Report (Doc. 54). In addition, on July 4, 2012, the Beepots filed an Emergency Motion to Stop the Foreclosure Sale and Stay Proceedings Pending Review. Id. The state court held a hearing on the matter and instructed the Beepots to post a supersedeas bond or the foreclosure sale would proceed as scheduled. Id. The Beepots failed to post the bond, and the foreclosure sale proceeded on July 18, 2012, resulting in the sale of the property to a bona-fide third-party buyer. Id. The state court proceedings concluded when Florida's First District Court of Appeal affirmed the state circuit court's decision on November 6, 2013, and issued the mandate on December 19, 2013. See Amended Defendant's Status Report and Response to Court Order (Doc. 61), Ex. D: Opinion; Motion to Dismiss, Ex.
First, Chase National contends that dismissal is warranted because this Court "lacks subject matter jurisdiction over [the Beepots'] claims under the Rooker-Feldman doctrine because the claims essentially seek to overturn the final judgment in the State Court Action." See Motion to Dismiss at 6. "[G]enerally speaking, the Rooker-Feldman doctrine bars federal district courts from reviewing state court decisions." Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir.2009); see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). This doctrine applies "both to claims actually raised in state court as well as those that are `inextricably intertwined' with the state court judgment." See Manning v. Harper, 460 Fed.Appx. 872, 874-75 (11th Cir.2012) (quoting Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir.2009)). However, the Eleventh Circuit instructs that "the Rooker-Feldman doctrine does not apply if the plaintiff's state-court appeal was still pending at the time when the plaintiff filed [her] complaint in federal court." Gottschalk v. Gottschalk, No. 10-11979, 2011 WL 2420020, at *4 (11th Cir. June 16, 2011) (citing Nicholson, 558 F.3d at 1279). Moreover, the resolution of the appeal "after the filing of the federal action does not `vanquish jurisdiction' in the federal court." Nicholson, 558 F.3d at 1279 n. 13. Accordingly, because the Beepots initiated the instant lawsuit while the state court case and subsequent appeal were still pending, their claims are not barred by the Rooker-Feldman doctrine.
Although the Rooker-Feldman doctrine does not bar the Beepots' lawsuit, the Court next considers whether their claims are barred by state preclusion law. "When a suit is brought under federal question jurisdiction, and the federal court `is asked to give res judicata effect to a state court judgment, it must apply the res judicata principles of the law of the state whose decision is set up as a bar to further litigation.'" Petillo v. World Savings Bank, FSB, No. 6:08-cv-1255-Orl-19GJK, 2009 WL 2178953, at *3 (M.D.Fla. July 21, 2009) (quoting Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir.1985)); Arthur v. JP Morgan Chase Bank, NA, 569 Fed.Appx. 669, 676 (11th Cir.2014) ("When evaluating the effect of a state court judgment, we apply the preclusion law of the rendering state.").
The doctrine of res judicata under Florida law provides that
See Madura v. Countrywide Home Loans, Inc., 344 Fed.Appx. 509, 517 (11th Cir.2009) (quoting Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)). Thus, under Florida law, for res judicata to apply, there must be:
See Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1074 (11th Cir.2013) (quoting Andela v. Univ. of Miami, 692 F.Supp.2d 1356, 1371 (S.D.Fla.2010)). "The policy `underlying res judicata is that if a matter has already been decided, the petitioner has already had his or her day in court, and for purposes of judicial economy, that matter generally will not be reexamined again in any court (except, of course, for appeals by right).'" See Zikofsky v. Marketing 10, Inc., 904 So.2d 520, 523 (Fla. 4th Dist.Ct.App.2005) (quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004)).
Moreover, "the failure to bring a compulsory counterclaim in a state court proceeding bars a subsequent suit in federal court on that claim." See Petillo, 2009 WL 2178953, at *4 (citing Montgomery Ward Dev. Corp. v. Juster, 932 F.2d 1378, 1380-82 (11th Cir.1991)). Rule 1.170 of the Florida Rules of Civil Procedure (Florida Rule(s)) governs the determination of whether a particular counterclaim constitutes a compulsory counterclaim under Florida law. See id. That Florida Rule, which incorporates Rule 13(a) of the Federal Rules of Civil Procedure into Florida law, provides:
See Juster, 932 F.2d at 1380-81 (quoting Fla. R. Civ. P. 1.170(a)). Pursuant to this Florida Rule, "a compulsory counterclaim is a defendant's cause of action `arising out of the transaction or occurrence that formed the subject matter of the plaintiff's claim.'" Id. (quoting Yost v. Am. Nat'l Bank, 570 So.2d 350, 352 (Fla. 1st Dist.Ct. App.1990)). "It is termed compulsory because the claim will be barred unless raised by the defendant in the original suit." Yost, 570 So.2d at 352.
Under Florida law, the "`logical relationship test' is the yardstick for measuring whether a claim is compulsory." See Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992). Florida applies the same "logical relationship" test as applied in the Eleventh Circuit such that:
Juster, 932 F.2d at 1381 (quoting Neil v. S. Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d Dist.Ct.App.1981)); see also Londono, 609 So.2d at 20. "The aggregate operative facts that can act as a common basis for both claims have been broadly construed in Florida." Juster, 932 F.2d at 1381. Indeed, because the rule is "designed to foreclose the possibility of duplicative litigation ... Florida courts encourage a `broad, realistic interpretation' of the rule that allows the rule to accomplish its goal." See Puff `N Stuff of Winter Park, Inc. v. Fed. Trust Bank, F.S.B., 945 F.Supp. 1523,
Under Florida law, a judgment on the merits is conclusive between the "`same parties or their privies.'" See AMEC Civil, LLC v. PTG Constr. Servs. Co., 106 So.3d 455, 456 (Fla. 1st Dist.Ct. App.2012) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)). "`A privy is one who is identified with the litigant in interest.'" Id. (quoting Progressive Am. Ins. Co. v. McKinnie, 513 So.2d 748, 749 (Fla. 4th Dist.Ct.App.1987)). Although the named plaintiff in the State Foreclosure Action was JPMorgan Chase Bank National Association, and the defendant named here is J.P. Morgan Chase National Corporate Services, Inc., these entities are both wholly owned subsidiaries of JPMorgan Chase & Co. See Motion at 12 n. 7. Chase National maintains that this relationship satisfies the "identity of the parties" requirement for res judicata to apply, and the Beepots do not assert otherwise. Indeed, in the Amended Complaint, the Beepots do not distinguish between the entity that initiated the State Foreclosure Action and the named defendant here. See Amended Complaint at 9-11 (alleging that Chase National claims an interest in the Subject Property, "threaten[s] to dispossess" the Beepots of the Property, and that a dispute exists between the parties regarding "the right of [Chase National] to foreclose on the Property"). Moreover, the interests of Chase Bank and Chase National in each case are the same, i.e., both entities are involved in these actions as the owner, holder, or servicer of the Beepots' loan.
In light of the relationship between Chase Bank and Chase National and the mutuality of their interest with respect to the Beepots, the Court finds that they are privies. See AMEC Civil, LLC, 106 So.3d at 456; see also Stogniew v. McQueen, 656 So.2d 917, 920 (Fla.1995) ("For one to be in privity with one who is a party to a lawsuit or for one to have been virtually represented by one who is a party to a lawsuit, one must have an interest in the action such that she will be bound by the final judgment as if she were a party."); Jasser v. Saadeh, 103 So.3d 982, 985 (Fla. 4th Dist.Ct.App.2012); Jenkins v. Lennar Corp., 972 So.2d 1064, 1065-66 (Fla. 3d Dist.Ct.App.2008); Mercer v. Honda Motor Co., Ltd., 551 F.Supp. 233, 234 (M.D.Fla.1982). Therefore, because the Beepots and a Chase entity are parties to both actions, the Court finds that the identity of the parties requirement is satisfied. Likewise, there is no dispute that the quality and capacity of the persons and entities involved are the same in both suits. Jenkins, 972 So.2d at 1066.
The same loan transaction, mortgage, and residential property that are at issue here were the subject matter of the State Foreclosure Action. Accordingly, the Court finds an identity of the thing sued for in both actions. See Nivia v. Nationstar Mortg., LLC, No. 13-Civ-24080, 2014 WL 4146889, at *4 (S.D.Fla. Aug. 21, 2014). As discussed below, the Beepots raised many of these same allegations as a defense to foreclosure in their Second Motion for Relief From Judgment in the State Foreclosure Action. Although it is unclear whether the Beepots pursued all of the same remedies in the State Foreclosure Action that they request here, "the fact that a party brings two separate actions, both of which are based on the same transactions, occurrences and facts, but seeks remedies which are distinct in the two actions does not preclude the application of res judicata." See Benline v. City of Deland, 731 F.Supp. 464, 467 (M.D.Fla.1989);
Next, the Court considers whether the State Foreclosure Action resulted in a final judgment on the merits as required to apply res judicata. Under Florida law, "issues determined on a motion to set aside a default judgment or to vacate a final judgment are res judicata." See AGB Oil Co. v. Crystal Exploration & Production Co., 406 So.2d 1165, 1167 (Fla. 3d Dist.Ct.App.1981). Indeed, "[p]rinciples of res judicata also apply to matters raised in postjudgment motions as well as to theories of recovery and defenses that could have been presented in the prior litigation." Bay Fin. Sav. Bank, F.S.B. v. Hook, 648 So.2d 305, 307 (Fla. 2d Dist.Ct. App.1995). As such, the Court finds that the state court's decision to enter Final Judgment in favor of Chase Bank, deny the Beepots' Second Motion for Relief from Judgment, and schedule the foreclosure of the Subject Property constitutes a final judgment on the merits subject to principles of res judicata. See AGB Oil Co., 406 So.2d at 1167; Bay Fin. Sav. Bank, F.S.B., 648 So.2d at 307; see also Hay, 92 Fla. at 457, 109 So. 617; Virgo v. Nat'l City Mortg. Co., 115 So.3d 1072, 1074-75 (Fla. 4th Dist.Ct.App.2013).
"Identity of the cause of action is a question of `whether the facts or evidence necessary to maintain the suit are the same in both actions.'" Lozman, 713 F.3d at 1074-75 (quoting Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th Dist. Ct.App.2005)); see also Madura, 344 Fed.Appx. at 517 ("Claims are considered the `same cause of action' if the facts essential to the maintenance of both actions are the same, that is, if the evidence in both cases is in essence the same."). Significantly, "a court looks not only at the causes of action actually raised in the first suit, but also at `every other matter which the parties might have litigated and had determined, within the issues as [framed] by the pleadings or as incident to or essentially connected with the subject matter' of the first litigation." Zikofsky, 904 So.2d at 523 (quoting Tyson, 890 So.2d at 1214 (Gross, J., concurring specially)). This test is narrow and "extends to `essentially connected' claims that a defendant in a former action failed to raise as a defense." Zikofsky, 904 So.2d at 523; see also Lozman, 713 F.3d at 1078.
In the instant action, the Beepots assert several claims for relief based on the same loan transaction, mortgage, and residential property that were at issue in the State Foreclosure Action. Upon careful review, the Court finds that, except for the alleged violation of the FDCPA, the Beepots' claims here were either actually raised in, or essentially connected to, the State Foreclosure Action.
Next, the Beepots raise a claim under RESPA based on Chase National's failure to provide notice of the transfer of the servicing contract or duties, and to properly provide the HUD-1 settlement statement. See Amended Complaint at 5-6. Likewise, the Second Motion for Relief From Judgment contains these same contentions: "[Chase Bank] directly and/or through agents, employees, entities, or persons involved in the extension of credit failed to provide notice as a `servicer' under [RESPA], that the servicing contract had been transferred." See Second Motion for Relief From Judgment at 2. In addition, the Beepots assert state law claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, infliction of injury, quiet title and declaratory relief. See Amended Complaint at 7-11. These claims are based on Chase National's purported conduct in inducing the Beepots to enter the loan transaction, failing to provide the proper disclosures, and attempting to foreclose on the Subject Property. Id. In the State Foreclosure Action, the Beepots also contended that Chase Bank breached a fiduciary duty owed to the Beepots, as well as the implied contractual covenant of good faith and fair dealing. See Second Motion for Relief From Judgment at 2.
Because the same purported facts and legal claims that the Beepots present in the Amended Complaint were previously raised and argued in the Second Motion for Relief From Judgment, the Court finds that the identity of the cause of action element is met with respect to the Beepots' TILA, RESPA, and state law claims.
In the Amended Complaint, the Beepots allege that Chase National violated the FDCPA by: failing to "cease communications with Plaintiffs' [sic] after such request to do so, in violation of 15 U.S.C. § 1692(a)(1)," engaging in "collection of amounts that have not been expressly authorized by the agreement creating the debt or permitted by law," and failing to provide "validation of the debt within five (5) days of the initial communication with Plaintiffs' [sic], ... in violation of 15 U.S.C. § 1692(g)." See Amended Complaint at 6-7.
"The FDCPA defines a `debt collector' as a person who uses an instrumentality of interstate commerce or the mails in a business which has the principal purpose of collecting debts, or who regularly collects debts owed to another." Warren v. Countrywide Home Loans, Inc., 342 Fed.Appx. 458, 460 (11th Cir.2009) (citing 15 U.S.C. § 1692a(6)). Although the Beepots assert in a conclusory manner that, "[o]n information and belief," Chase National is a debt collector within the meaning of the statute because it "regularly collects debt owed to another person," the Amended Complaint contains no factual allegations to support this legal conclusion. Indeed, the only relevant facts alleged in the Amended Complaint are that Chase National "has conducted business as a financial institution providing mortgages on real property in the state of Florida," it "owned, brokered and/or serviced Plaintiffs' mortgage loan," and "[s]ervicing contract or duties" were
Here, setting aside the conclusory allegations which merely track the statutory language, the Beepots fail to set forth any facts to support the alleged FDCPA violations. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ("[P]laintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." (internal quotations omitted)). Indeed, the only discernable actions attributable to Chase National, as relevant to this claim, are its efforts to enforce its security interest in the Subject Property. See Amended Complaint ¶ 2.
In light of the foregoing, the Court finds that the Motion to Dismiss is due to be granted, and the Amended Complaint is due to be dismissed. However, courts must generally give a pro se party at least one opportunity to amend before dismissing the complaint. See Cornelius v. Bank of Am., NA, 585 Fed.Appx. 996, 999-1000 (11th Cir.2014). Even so, a court need not allow an amendment where amendment would be futile. Id. "Futility justifies the denial of leave to amend where the proposed amended complaint would be subject to dismissal." See Edward v. BAC Home Loans Serv., L.P., 534 Fed.Appx. 888, 891 (11th Cir.2013); Cornelius, 585 Fed.Appx. at 999-1000. Here, the Beepots have filed two Motions to Amend the Complaint as well as a variety of other motions requesting "relief" from the state court proceedings and leave to add additional parties. See supra note 2.
Upon careful review, the Court determines that the Second Motion to Amend is due to be denied and the Amended Complaint dismissed with prejudice because the Beepots' proposed amendments are futile. In the Second Motion to Amend, the Beepots fail to overcome the problems inherent in the Amended Complaint as identified above, and seek to add new claims that would also be subject to dismissal. First, the Beepots appear to supplement only their TILA, RESPA and Quiet Title claims. The Court has reviewed the new allegations as to those claims and finds that they do not alter the Court's prior determination that these claims are barred by res judicata. See Second Motion to Amend at 3-11. Indeed, any further attempt to amend the barred claims would be futile. Moreover, the Second Motion to Amend offers no indication that the Beepots can correct the deficiencies in the FDCPA claim. As such, the Court will dismiss the claims raised in the Amended Complaint with prejudice.
In addition, in the Second Motion to Amend the Beepots raise several new causes of action that were not previously asserted in the Amended Complaint. See generally id., Ex. B: Complaint of Offenses Charged. These new claims are all premised on alleged errors and purported fraud occurring in this lawsuit or the State Foreclosure Action. Specifically, the Beepots allege that the state court improperly denied their motion for a rehearing/new trial without allowing the motion to be scheduled for a hearing. Id., Ex. B at 3-4. In addition, they argue that Chase Bank filed certain affidavits in support of its Motion for Summary Judgment of Foreclosure in "total concealment" from them, and that the state court improperly relied on this evidence to resolve Chase Bank's summary judgment motion. Id., Ex. B at 5-8. The Beepots also contend that Chase, its attorneys and employees committed fraud by including allegedly
To the extent the Beepots assert a new TILA claim pursuant to 15 U.S.C. § 1635, based on Chase's alleged failure to respond to their notice of rescission, this claim is barred by res judicata for the reasons stated in Part IV.B. As with their prior TILA claim, the Beepots also raised these alleged violations of § 1635 as a defense to the State Foreclosure Action. Indeed, in the Second Motion for Relief From Judgment, the Beepots argued that
See Second Motion for Relief From Judgment at 2; see also [First] Motion for Relief from Judgment (Doc. 98-12); Response to Second Motion to Amend, Ex. A: Initial Appellant Brief at 4-6. Accordingly, the Court finds that, like the TILA violations alleged in the Amended Complaint, the proposed TILA claims set forth in the Beepots' Second Motion to Amend are also identical to, or otherwise "essentially connected" to, the arguments raised and rejected in the State Foreclosure Action. See Zikofsky, 904 So.2d at 523. Because, as discussed above, the other prerequisites for the application of res judicata are met, the Beepots' proposed TILA claim is likewise barred by res judicata.
The Beepots also allege that the state court denied them "equal protection of the laws" and their "due process rights." See Second Motion to Amend, Ex. B at 3-8. The Court construes these constitutional claims as causes of action brought pursuant to 42 U.S.C. § 1983. Although unclear, it appears the Beepots intend to assert these constitutional claims against the judges who presided over the state court action.
The Beepots' allegations against the state court judges pertain entirely to the rulings of those judges in the State Foreclosure Action and the manner in which the judges conducted and decided the case. The Beepots take issue with the state court's purported decision to deny their motion for rehearing without allowing a hearing on the motion, and with the state court's reliance on evidence of which the Beepots allegedly did not have proper notice. Id. at 5-8. However, setting hearings, considering evidence, and deciding motions are plainly acts within the judicial capacity of a judge. See Cox v. Mills, 465 Fed.Appx. 885, 887 (11th Cir.2012) ("[T]he misconduct that [plaintiff] alleged below and now argues on appeal—that the state court judges held hearings, disposed of motions, and made recusal decisions—are all, by their nature, normal judicial functions."). Moreover, the state circuit court judges were plainly not acting in the "clear absence of all jurisdiction" in resolving the state foreclosure action. See Fla. Stat. § 26.012. Accordingly, the Beepots' equal protection and due process claims against the state court judges who presided over the State Foreclosure Action are barred by judicial immunity. See Drees v. Ferguson, 396 Fed.Appx. 656, 658-59 (11th Cir.2010).
The Beepots also seek leave to bring state law fraud claims against Chase, its employees, its attorneys, and their law firm based on their conduct in the State Foreclosure Action, as well as in this lawsuit. However, under Florida law, "`[a]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding.'" Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1042 (11th Cir.2006) (alteration in original) (quoting Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994)). Indeed, "[t]he litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin." Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla.2007). The Beepots' proposed fraud claims are based entirely on filings and evidence that Chase Bank and its attorneys submitted in the State Foreclosure Action, as well as in the instant action pending before this Court. See Second Motion to Amend at 816. As such, these actions fall squarely within the conduct
In addition, the Beepots appear to assert violations of 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. §§ 371 (conspiracy), 372 (conspiracy), and 15 U.S.C. § 1611 (willful violations of TILA). See Second Motion to Amend, Ex. B at 10, 12, 14, 16. However, these statutes are criminal statutes and do not provide for civil remedies. See Austin v. Global Connection, 303 Fed.Appx. 750, 753 (11th Cir.2008) ("The federal wire and mail fraud statutes are criminal statutes which do not provide for civil remedies."); Hom v. Brennan, 840 F.Supp.2d 576, 582 (E.D.N.Y.2011) (collecting cases for the proposition that there is no private right of action under 18 U.S.C. § 371); Dunn-Mason v. JP Morgan Chase Bank, N.A., No. 11-cv-13419, 2013 WL 5913684, at *13 (E.D.Mich. Nov. 1, 2013) (explaining that "15 U.S.C. § 1611 provides criminal penalties for certain violations of the Truth in Lending Act ... and does not provide a private civil right of action."). Moreover, "the Supreme Court has explained that private citizens lack `a judicially cognizable interest in the prosecution or nonprosecution of another.'" Austin, 303 Fed.Appx. at 753 (quoting Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 767 n. 13, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005)). As such, the Beepots cannot bring civil claims under these federal criminal statutes. Id.
In light of the foregoing, the Court finds that the new claims proposed in the Second Motion to Amend are either barred by res judicata, judicial immunity, or the litigation privilege, or are improperly premised on criminal statutes. Therefore, because the proposed second amended complaint would still be subject to dismissal, the Court finds that amendment is futile, and will deny the Second Motion to Amend. See Cox, 465 Fed.Appx. at 889 ("An amendment is futile where the complaint as amended would still be subject to dismissal."). The Beepots have amended their pleadings once, and attempted to amend a second time, the Court is not required to give them another opportunity to amend. See Cornelius, 585 Fed.Appx. at 999-1001. Indeed, despite all the Beepots' filings, the Court finds no indication that, with another opportunity to amend, the Beepots would be able to correct the numerous deficiencies in their Amended Complaint. Accordingly, the Amended Complaint is due to be dismissed with prejudice. For the foregoing reasons, it is
The Beepots have also filed several motions requesting that the Court enter default judgment against Chase National. See Plaintiffs' Motion for Entry of Default/Default With Prejudice (Doc. 85); Plaintiffs' Motion for Entry of Default Judgment (Doc. 109); Plaintiffs' Motion for Entry of Default Judgment Pursuant to Rule 55(b)(2), Federal Rules of Civil Procedure (Doc. 115) (collectively, Motions for Default Judgment). Preliminarily, the Court notes that Chase National is not in default in this case. Thus, no default judgment would be appropriate under Rule 55. Moreover, "[t]he entry of a default judgment is committed to the discretion of the district court." Hamm v. DeKalb Cnty., 774 F.2d 1567, 1576 (11th Cir.1985). "Entry of default judgment is a `drastic remedy,' and should be used `only in extreme situations.'" Gardner v. Aloha Ins. Servs., 566 Fed.Appx. 903, 906 (11th Cir.2014) (quoting Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316-17 (11th Cir.2002)). Upon review of the procedural history of this case and in light of Chase National's diligent defense of this action, the Court finds that the "`exceptional circumstances that would justify entry of a default judgment are not present.'" See Mitchell, 294 F.3d at 1317 (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.1985)). Accordingly, the Motions for Default Judgment are due to be denied.
In addition, it appears that the TILA claims are likely compulsory counterclaims as well. See Plant v. Blazer Fin. Serv., Inc. of Ga., 598 F.2d 1357, 1360-64 (5th Cir.1979) (finding that a counterclaim on the debt evidenced by a note which is the subject of a truth-in-lending action, is compulsory); Chapman v. Aetna Fin. Co., 615 F.2d 361, 364 (5th Cir.1980) (finding Georgia's compulsory counterclaim rule operates to preclude adjudication of Truth-in-Lending claims that are not asserted in precedent Georgia state court suits on the underlying debt); Iannucci v. Bank of Am., NA, No. 2:14-cv-106-FtM-38DNF, 2014 WL 2462978, at *3 (M.D.Fla. June 2, 2014) (noting the court's inclination to agree, although not deciding, that a TILA claim was a compulsory counterclaim to the state foreclosure action); Wallace, 2011 WL 1298195, at *2 but see In re Weinraub, 361 B.R. 586, 591-92 (Bankr.S.D.Fla.2007) (concluding that TILA claims were not compulsory counterclaims); In re Tomasevic, 275 B.R. 86, 101 (Bankr.M.D.Fla.2001) (finding that claim under section 121 of TILA was compulsory, but claim under 125 of TILA was not a compulsory counterclaim to a state foreclosure action).
In addition, the Beepots also raise a number of arguments in their Response to the Motion to Dismiss based on Chase National's purported violations of the Local Rules of this Court. The Court rejects these arguments because they are frivolous, irrelevant, and based on misinterpretations of the Local Rules.
