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Bank of America, N.A. v. Kissi

United States District Court, D. Maryland, Southern Division

March 16, 2015

BANK OF AMERICA, N.A., et al., Plaintiffs,
DAVID KISSI, et al., Defendants.


PAUL W. GRIMM, District Judge.

Plaintiffs, a bank and a mortgage servicer, have brought this case against a pair of repeat litigants whose relentless, frivolous, and vexatious behavior has led to the imposition of prefiling injunctions barring them from filing new cases in this and several other courts. Plaintiffs have moved for summary judgment on their claim for an injunction barring Defendants from bringing any new cases against Plaintiffs or their affiliates in any Maryland state court and seeking to grant this Court jurisdiction over any cases filed in violation of such an injunction. Defendants have cross-moved for summary judgment. Because a federal court cannot rely on an injunction to take jurisdiction over unrelated state-law cases and, in any event, the undisputed facts show that an injunction is not warranted, I deny Plaintiffs' motion for summary judgment and grant Defendants' cross-motion for summary judgment.


A. Procedural History

In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86 (U.S. 2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Where, as here, the Court is presented with cross-motions for summary judgment, the facts relevant to each motion must be considered in the light most favorable to the nonmovant. Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Unless otherwise stated, this background is composed of undisputed facts. See Ricci, 557 U.S. at 585-86; George & Co., 575 F.3d at 391-92; Dean, 336 F.Supp.2d at 480.

The long and convoluted history of litigation between the parties is laid out in detail in Bank of America, N.A. v. Kissi, No. PWG-12-3266, 2013 WL 4804824 (D. Md. Sept. 6, 2013) (" Kissi I "), and need not be set forth again here. In short, Defendants David Kissi and his wife, Edith Truvillion, have a long and well-documented history of engaging in repeated, frivolous litigation in this and other courts. Id. at *2-4. Their relationship with Plaintiffs Bank of America, N.A. ("BANA") and Specialized Loan Servicing, LLC ("SLS") dates back to 2006, when Defendants took out a mortgage on their property located at 4305 Ammendale Road, Beltsville, Maryland, serviced by BANA and sub-serviced by SLS. Id. at *4.

In April 2012, Defendants initiated their first lawsuit against BANA, SLS, and an officer of SLS in the Circuit Court for Prince George's County, which was removed to this Court and was dismissed in June 2012. Id. Defendants responded by filing several motions for reconsideration, requesting transfer of the case to a court in California, and seeking recusal of the presiding judge, the Honorable J. Frederick Motz; all were denied. Id. Defendants also filed a petition with the Judicial Panel on Multidistrict Litigation ("JPML") that was closed upon dismissal of the underlying case, and sought appellate review, which was denied for failure to comply with an injunction in a related Kissi case. Id. Undaunted, Defendants initiated at least four other actions involving Plaintiffs-in the Circuit Court for Prince George's County, the United States District Court for the Central District of California, and the Superior Court for the District of Columbia-as well as numerous petitions to the JPML, all of which were dismissed. Id. at *4-6.

As a result of his repetitive, frivolous, and obstreperous conduct in this Court, on March 14, 2013 then-Chief Judge Deborah K. Chasanow entered a prefiling injunction prohibiting Kissi from initiating any cases in the United States District Court for the District of Maryland without first obtaining permission of the chief judge. Mem. Op. & Order ("Kissi Injunction"), In re David M. Kissi, No. MC-13-33 (D. Md. March 14, 2013), ECF No. 4. Similar injunctions have been entered by the JPML, In re Kissi, No. 2425, 2013 WL 489023, at *3-4 (J.P.M.L. Feb. 6, 2013); the D.C. Superior Court, Order, Kissi v. Capitol Bank, No. 2012-CA-8122B (D.C. Super. Ct. Jan. 3, 2013); the Fourth Circuit, Kissi v. Pramco II, LLC, 401 F.Appx. 787 (4th Cir. 2010); the United States District Courts for the District of Delaware, Kissi v. Pramco II LLC, No. 09-113-JJF, 2009 WL 2424433 (D. Del. Aug. 5, 2009); the United States District Court for the Northern District of Ohio, Kissi v. Clement, No. 4:08 CV 1784, 2008 WL 7526326 (N.D. Ohio Oct. 3, 2008); and the Court of Federal Claims, Kissi v. United States, 102 Fed.Cl. 31 (Ct. Fed.Cl. 2011).

Plaintiffs commenced this action on November 6, 2012, by filing their two-count complaint setting forth claims for injunctive relief and abuse of process. Compl. ΒΆΒΆ 35, 40, ECF No. 1. In an initial round of motions, Defendants sought, inter alia, to dismiss the complaint and file their own $100 million counter-claim and to transfer or stay this case. See Defs.' Mot. to Dismiss & Countercl., ECF No. 8; Defs.' Mot. to Transfer, ECF No. 23; Defs.' Mot. to Dismiss Mot. for Legal Fees, ECF No. 26; Defs.' Mot. to Stay, ECF No. 32; Truvillion's Mot. to Dismiss & to Stay Countercl., ECF No. 34. Plaintiffs sought to dismiss Defendants' counterclaim and moved for partial summary judgment. See Pls.' Mot. for Partial Summ. J., ECF No. 11; Pls.' Mot. to Dismiss Countercl., ECF No. 10. In a memorandum opinion and order entered on September 6, 2013, inter alia, I struck Defendants' counterclaim as improperly raised and granted Defendants' motion to dismiss with respect to the claim for abuse of process. Kissi I, 2013 WL 4804824, at *10.

With respect to Plaintiffs' motion for summary judgment, I found that there was no genuine dispute of material fact with respect to two of the four elements required for a prefiling injunction under Cromer v. Kraft Foods North America, Inc., 390 F.3d 812, 818 (4th Cir. 2004): "(1) the party's history of litigation, in particular whether he has filed vexations, harassing, or duplicative lawsuits; [and] (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass." Id. Because of the myriad cases holding that Defendants had engaged in frivolous, vexatious, and meritless litigation-including the Kissi Injunction in this Court-I found that Defendants were collaterally estopped from arguing that their conduct has not been frivolous, and their status as bad-faith, vexatious, and frivolous litigants was established as matter of law. Kissi I, 2013 WL 4804824, at *13.

However, I also found that Plaintiffs had not provided sufficient evidence to satisfy the remaining two Cromer elements: "(3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions" beyond the nationwide prefiling injunction then sought by Plaintiffs. Id. at *10 (quoting Cromer, 390 F.3d at 818). Accordingly, I denied Plaintiffs' motion for summary judgment without prejudice, noting:

With respect to the burden caused by Kissi's conduct, the effect on the courts is well-documented. See, e.g., Kissi Inj [] ("The Court also finds that [Kissi] has become a substantial burden on judicial resources."). This case has shown Kissi to be no less burdensome on the Court than in his prior encounters with the judicial system. However, Plaintiffs have presented no evidence respecting the burden on Plaintiffs caused by Kissi's conduct, and by seeking to make this Court the gatekeeper on any filing made by Kissi in any court, the injunction sought by Plaintiffs seems certain significantly to increase the burden on this Court, rather than reduce it.
But most damning to Plaintiffs' motion for summary judgment is their failure to show any facts as to the inadequacy of alternative sanctions or why the sanction they seek would fill the remaining gaps. Indeed, since this lawsuit was filed, Defendants' ability to drag Plaintiffs into court has been curtailed significantly by the imposition of the Kissi Injunction, the DC Injunction, Kissi v. Capitol Bank, No. 2012-CA-8122B [], and the JPML's order that no further filings will be permitted with respect to, inter alia, this matter []. Plaintiffs have not shown why these alternative sanctions are not sufficient under the circumstances.
Finally, a prefiling injunction must be "narrowly tailored to fit the particular circumstances of the case before the District Court." Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993); see also Cromer, 390 F.3d at 819 (quoting Brow and examining whether injunction was narrowly tailored). Plaintiffs seek, in essence, a limitless injunction preventing Kissi and Truvillion from pursuing any action whatsoever in any court in the United ...

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