Johnson v. Duncan et al, No. 8:2015cv01820 - Document 56 (D. Md. 2017)

Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/11/2017. (aos, Deputy Clerk)
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Johnson v. Duncan et al Doc. 56 FILED IN TI'E UNITEI) ST f\l'ES 1)IS1'I'IC'I' C()UR""I~"S. L'!STr:ICT CGU":T i ~'.. .~ ~ ~•.•. '\. I:,.. .)ll'i/CTCF:-:, ~YL.A)::l FOR THE I>ISTRICT OF MARYLAND .. SOl/IIII'm Dil'isioll .JOSEI'll .IOIINSON, .IR. 1011 AUG I . A II: 30 CI - ;,:.' ..:'... .: Er.,-:." '-"or" . * ." " Plaintiff, J 1'\/ .: :.:- ~ - ' * Casc No.: G.JH-15-11l211 \'. * BETSY DEVOS, SECRETARY U.S. DEP'T OF EDUe., l'l :11., * Dcfcndants. * * * * * * * * * MEMORANDUM In a prcvious Mcmorandum promissory PlaintiffJoscph (collecti\'ely. cstoppcl. unjust cnrichmcnt. * * Motion Il)r Johnson, Jr.'s action against Arnc "Dcfcndants"). of Education.1 and the Departmcnt for hrcach of conditional Act of 1996. and thc Ilighcr Education Act of 1965. all arising from Johnson's debt." Now pcnding bci()rc thc Court is Plaintilrs ECF No. 51. and Dcicndants' of scttlcmcnt. and violations ofthc Consumcr Crcdit Rcporting Rctorm Act of 1996 or Fair Crcdit Rcporting Act ("FCRA "). the Deht Collection Complaint. * OI'INION of the Unitcd Statcs Dcpartmcnt Education (..the Departmcnt") * Opinion. the Court grant cd Dcfcndants' Judgmcnt on the Pleadings, dismissing Duncan, thcn-Sccrctary * Improvcmcnt student loan Motion to Clarify and I())' I.cavc to Amcnd thc Motion to Strikc Plaintilrs Motion. ECF No. 52. No hcaring is ncccssary. See I.oc. R. 105.6 (D. Md. July I. 2016). For thc following rcasons. PlaintiJrs Motion is dcnicd and Defendants' Motion to Strike is dcnied. I Betsy [)~Vos was cOlllinncd as the eleventh Secretary of Education on February 7. 2017 and shall be automatically substituted for fonner Secretar\' of Education. Arne Duncan pursuant to Fed. R. Civ. P. 25(d). ~The hackground facts of this ~asc were fully set forth in the Court's previous Opinioll. EeF No. 49. 1\11claims were dismissed. 5;c:e id at 13. I. [)(SCUSSION A. Defendants' Motion to Strike As an initial matter. Johnson represented by counscl. See UniledSwles Brian S. Jablon. A district court is not rcquired to accept such a motion. ". Gadsdell. No. CRIM. WDQ-II-0302. Nov. 20. 2013). a/fd. 616 F. App'x that "r filed his pro se Motion. ECI' No. 51. while he was wlhen a party is represented 2013 WI. 6145109. at *.j (D. Md. 539 (4th Cir. 2015). Indeed. Local Rule 102.1 (a)( i) provides by counsel. the Clerk shall accept for Iiling only documents signed by a member of the Bar of this Court whose appearancc is entered on behalfofthat party'" Loc. R. 102.1 (a)( i) (D. Md. July 1. 2016). Jablon has not liled a Motion to Withdraw this matter. and Defendants Howcvcr. have moved to strike Plaintilrs a new attorney. Kathleen in Motion on this basis. ECF No. 52. 11yland. entered an appearance as counsel of record on March 27. 2017. See ECF No. 53. On the same day. Hyland Iiled an Opposition to Defcndant's leave to Motion to Strike on Plaintiffs behalf. and in the alternati\'c. requestcd amend to cure thc citcd error under Loc. R. 102.1 (a)(i), ECF No, 54, In the Opposition Motion to Strike. PlaintifT indicates that he reasonably to represcnt him 1()lIowingjudgmcnt. attorneys" will. in its discretion. at issue it \\"Ould appear thaI Plaintiff may have been when he Iiled. notwithstanding entertain believed that Jabron \\'as no longer going and there lore filed the Motion I()r Reconsideration here pro se. See ECF No. 54 at 4. Thcrelore. "between to the Jabron's the merits of Johnson's f~lilure to withdra\\'. The Court thus Motion. and deny Defendants' Motion to Strike. B. .>Iaintiff's Motion to Clarify or for Lean The Court may not grant a post-judgment lirst vacatcs itsjudgmcnt pursuant to Amend motion to amcnd the complaint unless the court to Fed. R. Civ. P. 59(e) or 60(b). See Ca/nu:\' Chrisliall 2 Celller I'. Cilyo(Fret!ericks!JlIrg. I'irginill. 710 F.3d 536. 539 (4th Cir. 2013). Under Rule 59(e). a parly may tile a motion to alter or amend ajudgment judgmcnt. 3430673. Fed. R. Civ. P. 59(e): see 1Iiso Fort! at *I Unilet! SillIes. No. GJH-II-3039. 2016 WI. (D. Md. Mar. 16. 2016). The Courl may altcr or amend an earlier judgment ,,( I) to accommodate not available I'. no later than 28 days aner the entry of the an intcrvening change in controlling at trial: or (3) to correct a e1ear error oflaw S'{{lIes ex rei. Becker I'. Weslinghollse law: (2) to account or prevent manifest lilr new evidence injustice:' (4th Cir. 1998)). Under Rule 60( b). the Court may relieve a party li'om an adverse judgment inadvertence. that. with reasonable diligence. (3) Ii-aud. misreprcscntation. the judgmcnt surprisc. or cxcusable by an opposing relcased. or dischargcd: has been reversed or vacated: or applying reason that justi lies rei ier. Fed, R, (iv, it prospcctively if the party neglect: (2) newly discovered could not have been discO\wed or misconduet has been satislied. linilet! SlI\'{{nnllh Rh'er Co., 305 F,3d 284. 290 (4th ('il'. 2(02) (citilH! /'lIC, IllS, Co. \', Alii. NlII 'I Fire Ins, Co .. 148 F.3d 396.403 shows (1) mistake. only evidcnce in time to move li,r a new trial: party: (4) the judgment is \'tlid: (5) it is based on an earlier judgment is no longcr equitable: P, 60(b): see 1Iiso Rohinson that or (6) any other \', Wix Fil'm'ion ('orp. LU '. 599 F.3d 403. 41 I (4th Cir. 2(10), However. the Fourth Circuit has clarilied that lill' post-judgmcnt complaint. as hcrc ... [t]o dctel1lline whethcr vacatur is warrantcd itsclfwith cithcr ofthosc rules' legal standards. rcqucsts to amcnd thc , , , the court necd not conccrn Thc co uri nccd only ask whether the amcndment should bc grantcd. just as it would on a prcjudgmcnt motion to amcnd pursuant to Fed. R, Civ, P. 15(a):' KlIlyle \'. /'enn NlII, GlIllling. Inc .. 637 FJd 462. 471 (4th Cir. 20 I I), Accordingly court should cvaluate a postjudgmcnt motion to amcnd thc complaint "a "undcr thc samc Icgal standard as a similar motion liled bcforc judgment was entcrcd-for prcjudice. - Id (citin!! Laher \', Iht/wl'. . 438 F,3d 404. 427 (4th Cir. 2006)), futilitv'" - "Whcthcr amcndmcnt an amcndmcnt is prcjudicial whcrc, for cxamplc. "Iblclatcd omittcd): .lee also f)ea,\~\'\', lIill. of litigation arc not 1~l\'orcd"): Isaac \', lIarl'llrd amount of S J 2.390,00 (the "Purportcd balance 01'$35.556,58. and therefore procccdcd has been repcatcdly of Education Rcquiring dischargcd PlaintilTs and ancr Plaintiffs the Dcpartmcnt of privacy by intrusion PlaintilTsccks (S.D,W. and rcducc Johnson's principal substantially diflerent (dcnying balancc. three claims of breach of contract. upon seclusion'" See ECF No. 51-1 at 9-17. to no\\' dcfend against these claims at this late juncturc Va. Oct. 16.2(09) to amcnd and procccd on a thcory that the Departmcnt failed to "apply valid check paymcnts" and "invasion claim that his dcbt has bccn rejectcd by this Court and othcrs - for the sccond time. post-judgmcnt. See lOCI' studcnt joan obligations. See Rhodes \', E.I. DIII'011l De Nell/olll'S & Co.. No. CIV.A. 6:06-CV-00530. *I \\ hich lilll y sat islicd his oUlstand ing pri nci pal Plaintiff also adds a barrage of new claims. including conversion. amcndmcnt on a theory that his Fcbruary 2012 chcck in thc Settlemcnt") Nos. J and 10, Now, ncarly two ycars later - his Complaint dcnial of proposcd change thc naturc of thc complain!"'). Sincc Junc 2015. PlaintilThas extinguished and 833 F,2d 38. 42 (4th Cir. 1(87) (noting that 769 F.2d 8 J 7, 829 (I st Cir. 1(85) (aninning would "very matcrially is oncn found to bc by thc dcICndant and is oflCrcd shortly bcl()I'C or during claims which changc thc charactcr Ullilwsily. by thc naturc of thc it "raiscs a ncw Icgal thcory that \HHlld rcquirc thc gathcring analysis of 1~lctsnot alrcady considcrcd trial." Id (citations will oncn bc dctcrmincd lAther, 438 F.3d at 427. An amcndmcnt and its timing." prcjudicial at bad 1~lith. or is prcjudicial. 2009 WL 3380351. Ieavc to amcnd whcrc "adding a ncw and cause of action" would prejudicc the defendants): (JII/lli (Jllldoor A,h'l.'I'Ii.l1I1g Illc. \'. CollIlI/hia Ollldoor IlIc .. 974 F.2d 502. 506 (4th Cir. 1992) Ad\'rJ'li.lillg. (denying leave to amend. noting that ..[tjrying cases onc claim at a time is both unfair to thc opposing party and ineflicient Moreovcr. no justilication for the judicial I'laintilThas systcm"). bad ample opportunity to present these claims. and hc has offcrcd It))' omitting thcse claims in his Complaint GlasrJ' \'.1:11:0 /Jioch"l1/. fllc .. 126 F. App'x or First Amended 593. 602 (4th Cir. 2005) (aflirming to amend where plaintiff had "many opportunities to present their claim"): ARAMA RK Cor" .. No, 1: 12-CV -0 1584-ELJ I. 2014 WI. 1248296. a/rd. Complaint. 582 F. App' x 151 (4th Cir. 2014) (denying S"" deoial of leave 1/""II,hill \', at *25 (D. Md. Mar. 25. 2(14). leave to amend wherc plainti 1'1' knell' the underlying l~lCtswhen he filed the carlier complaint). prejudicial to Defendants. In addition. The timing of his amendment "where thc movant first presents a theory diflieult and. only alier that I~lils. a Icss I~ll'orable theory. dcnial ofleal'c I~lith may bc appropriate." In this casc. Johnson accord and satisfaction" a theory that his "conditional check "should havc reduced" Vi11S01l.NO.1: 14CV 192.2015 to amcnd and agrccing to amcnd on the grounds of bad settlement estoppel. thc balance, WL 4774276. .<.,."" Johnson advanccs a I'alid S"" 1/01'1011". at *29 (N,D, \Y, Va, Aug. 12. 2015) (denying that "Iolnly alier Iplaintiff] bccame aware ofthc limitations that hc has choscn to add these allegations (internal omittcd). This. coupled with Johnson's 5 Icavc on pleading ncw t~lctual allegations. leading to thc natural conclusion and altcrations a theory that the ECF No. 51-1 at 7-8. . , . [thc] claims through motions practice did he mcntion any ofthcsc citations constitutes of his student loans. ECF No, 10 at 14. and now. only alier the Court has tound that such a theory is barred by collateral settlemcnt but t~l\'orable 111\'.Cor" .. 660 F.2d 594. 599 (5th Cir. 1981). DIISSOIIY ", GlllrCO(lS1 first prescnted to establish is thus in bad I~lith ... ") wcll-establishcd historl' as "a serial litigator who is on a decade-long quest (undetcrred by lack of success at each instance) to avoid paying student loans that he took out from 1993 to 1996 and to sue various with thesc loans:' Johnsoll parties associated 2015 WL 7769502. at *1 (D. Md. NO\'. 17. 2015).a{l'd. the Court to lind that the proposcd amendment Finally. such an amendment proposed standards:' amended r. Experiall lillil. So/s .. IlIc.. No. I'WG-15-55X. complaint 670 F. App'x 77X (4th Cir. 2(16). is also made in bad laith. would be futile. An amendment is tiltile where ..the lails to state a claim under the applicable or "fails to satisfY the requiremcnts rules and accompanying KlIIy/e ". I'elln Nal. of the fcderal rules:' Ga1l1ing, IlIc.. 637 F.3d 462. 471 (4th Cir. 2(11). I lere. because I'laintilThas that sovereign immunity has been waived for the Department with respect to any of his claims. thc proposcd e,g.. Frielld,. oIDere~f'J)ark ". Nal'/I'ark at *6 (D,S.C. Apr. 13. 2(15) (finding fedcral defendants Sen,. leads of Education. Sccond Amcnded Complaint No, 2: 13-CV -03453-DCN. intcrvenor-dclendant" would be futile unless proponcnt s proposcd could establish f~liled to establish a fedcral agency. is also futile, See. 2015 WL 12X077X2. amendment against that lederal delendants had . waived sovereil!n immunitv). ~ "Sovereign (4th Cir. 2(00). immunity deprives a court of jurisdiction." "It is wcll establishcd the claim must invoke the jurisdiction 2(06), Once a challcnge 225 F.3d 46X. 469 that bclt)re a federal court can decide the merits ofa claim. of the court." ,lli//er ". is madc to subject mattcr jurisdiction. proving that subjcct mattcr jurisdiction us. ".JOlles. BrOIl'll, 462 F.3d 312. 316 (4th Cir. thc Plainti ITbears the burdcn of exists. See 1"\'(111.1' 13. Perkins Co .. a Dir, o(Slalldex ". F 111/'/ Corp .. 166 F,3d 642. 64 7 (4th Cir. 1999): see a/so Ferdilll11ll/~Dl1l'ellpOrl ". ('hi/drell '.' (jlli/d 742 f. Slipp. 2e1 772. 777 (D. Md, 20 I0). federal prescribes that "[i]fthc cOllrt detcrmincs Rule of Civil Procedure 12(h )(3) at anv timc that it lacks subject matter jurisdiction. . '. 6 the court must dismiss the action'" Fed. R. Civ. 1'. 12(h)(3): see also lIellder.IWI ex rei. Ilellder.IWI Shillseki. 562 U.S. 428. 434 (2011) (noting that "!olbjeetions to subjcct-mallerjurisdiction r. ... may be raised at any time"'). First. the Court lacks jurisdiction Department. over Plaintifrs because the limited waiver of sovereign commonly breach of contract claims against the immunity set 1(1(.thin 28 U.S.c. known as the Lillie Tucker Act. does not apply to Plaintilfs Tucker Act provides ~ 1346(a). claims. The Little in relevant part: [Tlhc district courts shall have original jurisdiction. concurrent with the United States Court of Federal Claims. of ... lanyl ... civil action or claim against the United States. not exceeding $10.000 in amount. I(lllllded ... upon any express or implied contract with the United States. or I()I' liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.c. ~ 1346(a)(2). Ilowever. ..the Little Tucker Act has long been construed as wai\'ing the federal government's sovereign immunity only with respect to claims that seck monetary rclief in the 1()fIll of 'actual. presently due money damages .... f)mr,\'OIl \'. Greal Lakes Edu,.. I.OIUI Sen'.I .. Ill,. .. No. 15-CV -4 75-BBC. 20 J 6 WI. 426610. at *3 (W.D. Wis. reb. 3. 2016) (citing Bowell \'. Massad1/l.1'l'lls. 487 U.S. 879. 914-15 (1988)). or declaratory "Claims I()r any type of equitable nonmonetary rclief. such as injunctive Act's ambit." or !d (citing Sharp \'. Weillherger. 798 F.2d 1521. 1523-24 (D.c. Cir. 1986»). llerc. while Plaintiff seeks $10.000.00 breach ofthc federal Direct Loan contract. due moncy damages" relict: do not lilll within the Little Tuckcr in compensatory PlaintilThas damages I(Jr Dcfcndants' no causc of action I()r "actual. presently li'OIll the United Statcs. As thc Court of Fcderal Claims has already recognizcd: Although he alleges a mcdley of contractual brcaehcs by the Departmcnt of Education. Mr. Johnson ne\'cr suggests that he has sustained any injury that would require the government to pay him 7 allcged dmll<wcs. Indccd. his solc ~ I!ricvancc is that thc ~ I!ovcrnmcnt has ~ illcgally increased his prccxisting debt. Whether or not this is so. Mr. Johnson will not havc a causc for monctary damagcs until he actually pays olTsome part of that allcgcdly impropcr debt. ... Currcntly. cven if Mr. Johnson wcrc to proV'C that a portion of his dcbt is unjustilicd. hc would still owe a substantial outstanding balancc to the Dcpartmcnt of Education. Mr. Johnson conscqucntly has no grounds to dcmand a refund of paymcnts alrcady made and thus no claim li,r monctary damagcs . .Iohmoll 105 Fcd. CI. 85. 95 (2012). Thus. cvcn ifsucccsslill.l'laintilTcould \'. Ullill'dS/all's. only achievc injunctivc rclicf in thc limn of an ordcr that his dcbt amount bc rccalculatcd. Bccausc such claims do not 1[111 within thc Little Tuckcr Act's waivcr of immunity. lacks jurisdiction ovcr Johnson's (Iinding no jurisdiction spccilic pcrllmnancc brcach of contract claims. See onthc contract also fails. as thc Ilighcr Education rclicf against thc Sccrctary ilEA. See 20 U.S.c. ~ I082(a)(2) under thc Sccrctary's ("no ... control): action seeking to cnjoin Secretary of Education ... shall be issued against the Sccretary 1rom collecting ovcr I'laintifCs ncgligcnt or wronglili act or omission 2010 WL ovcr plaintifCs tort claims Illr convcrsion The Fedcral Tort Claims Act ("FTCA") immunity. and 28 see Siller )'. U'li/cd but such waivers must bc strictly and narnl\\ly See I.alle \'. Pella. 518 U.S. 187. 192 (J 996). Thc FTCA providcs remedy lor "injury or loss of property. or pcrsonal 8 thc cxclusiv'c injury or dcath arising or rcsulting of any cmploycc ofthc or on his student loan dcbt). ~ 267 J. l'1 seq.. operates as a limited waiver of sovcrcign construed. prohibits in relation to her powers under the no subjectmalterjurisdiction upon scclusion. Slales. 44 J F.~d ~06. ~ J 0 (4th Cir. 2(06). Act ("IlEA") claim for DUllcall. No. CIY. CCB-09-1407. Lipc:l'lIko,.. thc COUl11acksjurisdiction invasion of privacy by intrusion U.S.c. of Education injunction 672846. at *2 (D. Md. Feb. 22. 2(10) (linding Additionally. 20 16 WI. 4266 I O. at *~ ovcr studcnt loan casc under thc Littlc Tucker Act). I'laintifCs claims Illr injunctive propcrty f)l/\,.SOIl. thc Court Govcrnmcnt fromthc whilc acting within the scope of his office or employmenl." brought only "against 28 U.S.c. * 2679(b). immunity such claims are properly the United States," See id Thus ... [tJhe authority of any federal agency to sue and be sued in its own name shall not be construed agency on claims" However. under the FTCA. * suits against such federal 2679(a). Since the FTC A "only "'aives sovereign for suits brought against .the United States: nomine or against a federal employee to authorize individually suits brought against a federal agency eo are dismissible for lack of jurisdiction," * Sll'IJng 1'. fJ)'ar. 573 F. Supp. 2d 880. 884-85 (D. Md. 2008) (citing 28 U.S.c. Ed,~l'.341 F.2d 477. 480 (4th Cir. 1965»). Accordingly. Dcpartment "unequivocally I'. tort claims against thc of Edueat ion filii for lack of subject matter jurisdiction. Finally. Plainti 1'1' ails to establish f Maryland PlaintiJrs expressed" Consumer that waiver of sovereign immunity in his claims under the Fair Credit Reporting Debt Collection (D. Md. Apr. 3. 2017). the provisions with its provisions government. is clear and Act ("FCRA ") or the As this Court recently held in RohillSon Act ("MCDCA"). l'enl1.l)'/\'lInia Higher Edllc. Agent)'. No. GJII-15-0079. Plaintiff: 2679: //ohnes ". 2017 WL 1277429. at *3 of the FCRA imposing civil liability for noncompliance do not contain an unequivocal waiver of sovereign FUl1her. the language of the MCDCA - in no way operates to waive sovereign a Maryland immunity immunity I,ll' the federal state statute - f,)J' thc U.S. Department cited by of Education. See ECF No. 54 at 9. That the MCDCA defines "person" to include a "legal or commercial entity," Md. Code. Com. Law u.s. Dep'l 14-201. is wholly inapposite to the question of waiver. C( lIa ". o(Edllc .. 680 F. Supp. 2d 45. 47 (D.D.C. 2(10) (declining the defendant Congress * based on the FDCPA in accordance can waive an executive claims similarly agency's f~lil f,)r lack of jurisdiction. to "assert jurisdiction with .the longstanding sovereign principle that only immunity .... ). The remaining proposed and therej,)re 9 shall be denied as futile. over II. CONCLUSION For the foregoing reasons. Plaintiffs Motion for Leave to Amend. Eel' No. 51. is denied. Defendants' Motion to Strike. Eel' No. 52. is denied. A separate Order shall issue. Date: August J( /VI/- . 2017 GEORGE J. HAZEL United States District Judge 10