United States District Court, D. Colorado
M. EUGENE GIBBS SQUIRES, Plaintiff,
URBAN SETTLEMENT SERVICES, KORN LAW FIRM, P.A., BENJAMIN D. MOORE, and DOES 3 5, Defendants
RECOMMENDATION AND ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTIONS FOR INJUNCTIVE AND OTHER RELIEF
B. Shaffer, United States Magistrate Judge
This matter comes before the court on Defendants Benjamin D. Moore's Motion to Dismiss (doc. #24), Bank of America, N.A. (" Bank of America") and Nationstar Mortgage's (" Nationstar") Motion to Dismiss (doc. #40), and Urban Settlement Services' (" Urban") Motion to Dismiss (doc. #45). Also before the court is Plaintiff M. Eugene Gibbs-Squires' Motion for Temporary Order and Injunction (doc. #6), Amended Motion for Injunction (doc. #11), Motion for Default Judgment (doc. #16), Motion for Sanctions (doc. #37), Motion for Reconsideration (doc. #47), Motion for Recusal (doc. #61), and
Motion to Amend his First Amended Complaint (doc. #64). These motions were
referred to the Magistrate Judge pursuant to the Order of Reference dated March
13, 2014 (doc. #4).
This court has carefully considered each motion and related briefing, the entire case file, the comments offered by the parties during the June 26, 2014 Telephone
Status Conference and applicable case law. For the following reasons, I
recommend that Plaintiff's Amended Complaint be dismissed. I further recommend
that Plaintiff's Motion for Temporary Order and Injunction, Amended Motion for
Injunction, and Motion for Default Judgment be denied.
On February 25, 2014, pro se Plaintiff M. Eugene Gibbs-Squires and his wife, Barbara A. Gibbs, filed a lawsuit against Bank of America, Nationstar, Specialized Loan Services (" SLS"), and Urban claiming a violation of Racketeer Influenced and Corrupt Organizations Act (" RICO") 18 U.S.C. § 1962(c). Plaintiff alleged that these organizations were part of an enterprise engaged in wire and mail fraud and were acting in contravention of their contractual obligations owed under the Home Affordable Modification Program (" HAMP").(Doc. #1).
Plaintiff and his wife borrowed funds from Bank of America in March 2005 to purchase a house in Florence, South Carolina. ( See doc. #1 at ¶ 109). Following the introduction of HAMP, Bank of America contracted with Urban to provide HAMP-related services, such as corresponding with borrowers and processing HAMP applications. ( See doc. #1 at p. 3). In November 2012, Bank of America transferred the servicing of Plaintiff's loan to Nationstar, a national mortgage servicer. ( See doc. #1 at ¶ 128). Nationstar thereafter initiated foreclosure proceedings on the property through its counsel, the Korn Law Firm, P.A. (" Korn Law Firm"), located in Columbia, South
Carolina. Plaintiff is a resident of South Carolina and Maryland. (Doc. #1 at ¶
14). Bank of America is a citizen of North Carolina (doc. #1 at ¶ 15); Nationstar is a citizen of
Texas (doc. #1 at ¶ 17); and Urban is a citizen of Pennsylvania with main
offices located in Colorado (doc. #1 at ¶ 16).
On March 25, 2014, one month after filing the Complaint, Plaintiff filed a Motion for Temporary Restraining Order and Injunction seeking a bond of $1.5 million from Nationstar to cover damages to the home and asking the court to enjoin Nationstar from taking further action related to the foreclosure proceedings. (Doc. #6)
Plaintiff then filed an Amended Complaint on April 3, 2014, claiming violation of RICO, the Equal Credit Opportunity Act (15 U.S.C. § 1691), California's Consumer Legal Remedies Act (Cal. Civ. § 1750 et seq), and California's Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.), as well as breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent misrepresentation, unjust enrichment and/or restitution, promissory estoppel, and a civil rights violation pursuant to 42 U.S.C. § 1983. (Doc. #8). The Amended Complaint omitted from the caption Bank of America, Nationstar, and SLS as defendants, and Barbara A. Gibbs as co-plaintiff; and the Clerk terminated these parties from the lawsuit on April 3, 2014. Plaintiff substituted the Korn Law Firm as Doe 1, and Benjamin D. Moore as Doe 2. ( See Doc. #8) . Mr. Moore is a private attorney who practices in South Carolina and who
was appointed by the Twelfth Judicial Circuit Court in Florence, South Carolina
to serve as Special Referee in the judicial foreclosure of Plaintiff's property.
(Doc. #24 at p. 1).
On April 7, 2014, Bank of America and Urban filed a notice of related case with the court relating to George v. Urban Settlement Services, No. 13-cv-01819-PAB-KLM (D. Colo.). (Doc. #9). On April 28, 2014, Plaintiff filed an Amended Motion for
Injunction incorporating by reference his Motion for Temporary Restraining Order
and Injunction and seeking an order requiring Nationstar to pay Plaintiff $8, 000 per month to
" cover Gibbs' relocation and psychiatric care until the conclusion of this
case." (Doc. #11).
On May 8, 2014, Defendant Moore filed an Answer to Plaintiff's Amended Complaint (doc. #13). On May 13, 2014, Plaintiff filed a Motion for Default Judgment as to Defendant Moore (doc. #16), to which the Clerk responded stating that Plaintiff had not filed a Fed.R.Civ.P. 55 affidavit, an affidavit attesting to Mr. Moore's military status as required by Service Members Civil Relief Act, or proof of service, and noted that a responsive pleading had been filed by Mr. Moore. (Doc. #17). On May 19, 2014,
Defendant Moore responded to Plaintiff's Motion for Default (doc. #19) and filed
a Motion to Dismiss (doc. #20). Moore filed a second Motion to Dismiss on May
22, 2014 (doc. #24), and an Amended Answer on May 29, 2014 (doc. #26). South
Carolina Deputy Solicitor General James Emory Smith, Jr. and Assistant Attorney
General Kristin Simons entered their appearance on behalf of Defendant Moore on
May 29, 2014 (doc. #25). On June 16, 2014, this court denied Moore's May 19
Motion to Dismiss as moot and duplicative of his May 22 Motion to Dismiss (doc.
Urban waived service on May 21, 2014 (doc. #31), and Bank of America waived service on or around May 30, 2014 ( see doc. #30). To date these are the only two Defendants for whom service has been effected. On June 16, 2014, Plaintiff moved for sanctions against Moore and the Attorney General of South Carolina claiming that the Attorney General had filed an Amended Answer on Moore's behalf without first consulting with Plaintiff. ( See Doc. #37). Plaintiff asked for an award of $3 million and an injunction restricting Moore and the Twelfth Judicial Circuit from foreclosing on his home. See id. On June 20, 2014, Bank of America and Nationstar filed a Motion to Dismiss Plaintiff's Amended Complaint with an accompanying brief, and sought a stay of briefing in the alternative (doc. #40 and #41). Bank of America and Nationstar filed a Response to Plaintiff's Amended Motion for Injunction and Motion for Temporary
Restraining Order the same day (doc. #42). On June 23, 2014, Urban filed a
corporate disclosure statement (doc. #44) and a Motion to Dismiss with
accompanying brief (doc. #45 and #46). The following day, Plaintiff filed a
Motion for Reconsideration of this court's Order denying Defendant Moore's first
Motion to Dismiss as moot (doc. #47).
This court held a Telephone Status Conference on June 26, 2014, at which the undersigned instructed Plaintiff that he cannot represent his wife as a pro se litigant and questioned the court's jurisdiction over most of the Defendants. ( See Doc. #52). This court set a briefing schedule for the pending motions and contemplated holding a Motions Hearing following the completion of briefing. See id. On July 3, 2014,
Defendant Moore filed a Response to Plaintiff's Motion for Sanctions (doc. #53),
and Plaintiff filed a " Post Hearing Brief." (Doc. #54). Several days later, on
July 9, 2014, Plaintiff filed an " Emergency Motion for Stay" (doc. #56) and a
Response to Defendant Moore's Motion to Dismiss (doc. # 57). Plaintiff filed a Response to Bank of America and Nationstar's Motion to Dismiss on July 10, 2014 (doc. #58). On July 14, 2014, Chief Judge Krieger denied Plaintiff's " Emergency Motion for Stay" for failure to comply with D.C.COLO.LCivR 7.1.A (doc. #59). Bank of America and Nationstar filed their Reply in support of their Motion to Dismiss on July 22, 2014 (doc. #60), and Urban filed its Reply in support of its Motion to Dismiss on July 28, 2014 (doc. #63).
On July 23, 2014, Plaintiff filed an " Emergency Motion for Recusal" asking the undersigned to recuse himself on the basis that this court had not yet ruled on Plaintiff's Motion for Temporary Restraining Order and Injunction. ( See Doc. #61). On August 22, 2014, Plaintiff filed a Motion to Amend the Complaint (doc. #64). On September 11 and 12, 2014, Defendants Moore, Urban, Bank of America, and Nationstar filed oppositions to the Motion to Amend. ( See Doc. #66, #67, and #68). Plaintiff filed a Reply in support of his Motion to Amend on September 29, 2014 (doc. #69). On October 1, 2014, Bank of America and Nationstar filed a Notice of Supplemental Authorities in support of their opposition to Plaintiff's Motion to Amend (doc. #70), and filed an accompanying brief the following day (doc. #71). On October 9, 2014, Plaintiff filed a notice of his intent to file an interlocutory appeal (doc. ...