United States District Court, D. Maryland, Southern Division
JOSEPH JOHNSON, JR. Plaintiff,
BETSY DEVOS, SECRETARY U.S. DEP'T OF EDUC, et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
previous Memorandum Opinion, the Court granted
Defendants" Motion for Judgment on the Pleadings,
dismissing Plaintiff Joseph Johnson. Jr.'s action against
Arne Duncan. then-Secretary of the United States Department
of Education. and the Department of Education ("the
Department") (collectively, ''Defendants"),
for breach of conditional settlement, promissory estoppel,
unjust enrichment, and violations of the Consumer Credit
Reporting Reform Act of 1996 or Fair Credit Reporting Act
("FCRA"). the Debt Collection Improvement Act of
1996. and the Higher Education Act of 1965. all arising from
Johnson's student loan debt. Now pending before the Court
is Plaintiffs Motion to Clarify and for Leave to Amend the
Complaint. ECT No. 51. and Defendants" Motion to Strike
Plaintiffs Motion. ECF No. 52. No hearing is necessary.
See hoc. R. 1 05.6 (D. Md. July 1. 201 6). For the
following reasons. Plaintiffs Motion is denied and
Defendants" Motion to Strike is denied.
Defendants' Motion to Strike
initial matter. Johnson filed his pro se Motion. ECF
No. 51. while he was represented by counsel. Brian S. Jablon.
A district court is not required to accept such a motion.
See United States v. Gadsden, No. CRIM. WDQ-11-0302.
2013 WL 6145109. at *4(D. Md. Nov. 20. 2013). affd,
616 F, App'x 539 (4th Cir. 2015). Indeed. Local Rule
102.l(a)(i) provides that "[w]hen a party is represented
by counsel, the Clerk shall accept for filing only documents
signed by a member of the Bar of this Court whose appearance
is entered on behalf of that party." Loc. R. 102.1(a)(i)
(D. Md. July 1. 2016). Jablon has not filed a Motion to
Withdraw in this matter, and Defendants have moved to strike
Plaintiff's Motion on this basis. ECF No. 52.
a new attorney. Kathleen Hyland. entered aft appearance as
counsel of record on March 27. 2017. See ECF No. 53.
On the same day. Hyland filed an Opposition to
Defendant's Motion to Strike on Plaintiffs behalf, and in
the alternative, requested leave to amend to cure the cited
error under I.oc. R. 102.1(a)(i). ECF No. 54. In the
Opposition to the Motion to Strike. Plaintiff indicates that
he reasonably believed that Jabron was no longer going to
represent him following judgment, and therefore tiled the
Motion for Reconsideration at issue here pro se. See
ECF No. 54 at 4. Therefore, it would appear that Plaintiff
may have been "between attorneys" when he filed,
notwithstanding Jabron's failure to withdraw. The Court
thus will, in its discretion, entertain the merits of
Johnson's Motion, and deny Defendants' Motion to
Plaintiffs Motion to Clarify or for Leave to Amend
Court may not grant a post-judgment motion to amend the
complaint unless the court first vacates its judgment
pursuant to Fed.R.Civ.P. 59(e) or 60(b). See Calvary
Christian Center v. City of Fredericksburg.
Virginia, 710 F.3d 536. 539 (4th Cir. 2013). Under Rule
59(e). a party may file a motion to alter or amend a judgment
no later than 28 days alter the entry of the judgment.
Fed.R.Civ.P. 59(e); see also Ford v. United States,
No. GJH-11-3039. 2016 WI. 3430673. at *1 (D. Md. Mar. 16.
2016). The Court may alter or amend an earlier judgment only
""(1) to accommodate an intervening change in
controlling law: (2) to account for new evidence not
available at trial: or (3) to correct a clear error of law or
prevent manifest injustice." United Stales ex. rel.
Becker v. Westinghouse Savannah River Co., 305 F.3d 284.
290 (4th Cir. 2002) (citing Pac. Ins. Co. v. Am. Sat
7 Fire his. Co., 148 F.3d 396. 403 (4th Cir. 1998)).
Rule 60(h). the Court may relieve a party from an adverse
judgment if the party shows (1) mistake, inadvertence,
surprise, or excusable neglect: (2) newly discovered evidence
that, with reasonable diligence, could not have been
discovered in time to move for a new trial; (3) fraud,
misrepresentation, or misconduct by an opposing party: (4)
the judgment is void: (5) the judgment has been satisfied,
released, or discharged: it is based on an earlier judgment
that has been reversed or vacated: or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief. Fed.R.Civ.P. 60(b): see also
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411
(4th Cir. 2010).
the Fourth Circuit has clarified that for post-judgment
requests to amend the complaint, as here, "[t]o
determine whether vacatur is warranted . . . the court need
not concern itself with either of those rules" legal
standards. The court need only ask whether the amendment
should be granted, just as it would on a prejudgment motion
to amend pursuant to Fed.R.Civ.P. 15(a)." Katyle v.
Penn Nat. Gaining. Inc., 637 F.3d 462. 471 (4th Cir.
2011). Accordingly "a court should evaluate a
postjudgment motion to amend the complaint "under the
same legal standard as a similar motion tiled before judgment
was entered-for prejudice, bad faith, or
futility."" Id., (citing Later v.
Harvey, 438 F.3d 404. 427 (4th Cir. 2006)).
an amendment is prejudicial will often be determined by the
nature of the amendment and its timing." Laber,
438 F.3d at 427. An amendment is often found to be
prejudicial where, for example, it "raises a new legal
theory that would require the gathering and analysis of facts
not already considered by the defendant and is offered
shortly before or during trial.'' Id.
(citations omitted): see also Deasy v. Hill, 833
F.2d 38. 42 (4th Cir. 1987) (noting that "[b]elated
claims which change the character of litigation are not
favored"); Isaac v. Harvard University, 769
F.2d 817. 829 (1st Cir. 1985) (affirming denial of proposed
amendment which would "very materially change the nature
of the complaint").
June 2015. Plaintiff has proceeded on a theory that his
February 2012 check in the amount of $12, 390.00 (the
"Purported Settlement") fully satisfied his
outstanding principal balance of $35, 556.58. and therefore
discharged Plaintiffs student loan obligations. See
FCF Nos. 1 and 10. Now. nearly two years later - and after
Plaintiffs claim that his debt has been extinguished has been
repeatedly rejected by this Court and others - Plaintiff
seeks to amend his Complaint for the second time,
post-judgment, and proceed on a theory that the Department of
Education failed to "apply valid check
payments"" and reduce Johnson's principal
balance. Plaintiff also adds a barrage of new claims,
including three claims of breach of contract, conversion, and
"invasion of privacy by intrusion upon seclusion."
See ECF No. 51-1 at 9-17. Requiring the Department
to now defend against these claims at this late juncture is
prejudicial. See Rhodes v. E.l. Du Pont De Nemours &
Co., No. CIV.A. 6:06-CV-00530. 2009 WL 3380351. at *1
(S.D. W.Va. Oct. 16. 2009) (denying leave to amend where
"adding a new and substantially different cause of
action" would prejudice the defendants): Omni
Outdoor Advertising, Inc. v. Columbia Outdoor
Advertising, Inc., 974 F.2d 502. 506 (4th Cir. 1992)
(denying leave to amend, noting that "[t]rying eases one
claim at a time is both unfair to the opposing party and
inefficient for the judicial system").
Plaintiff has had ample opportunity to present these claims,
and he has offered no justification for omitting these claims
in his Complaint or First Amended Complaint. See Glaser
v. Enzo Biochem, Inc., 126 F.App'x 593. 602 (4th
Cir. 2005) (affirming denial of leave to amend where
plaintiff had "many opportunities to present their
claim""): Hemphill v. ARAMARK Corp., No.
1:12-CV-01584-ELII. 2014 WI. 1248296. at *25 (D. Md. Mar. 25,
2014). aff'd. 582 F.App'x 151 (4th Cir.
2014) (denying leave to amend where plaintiff knew the
underlying facts when he filed the earlier complaint). The
timing of his amendment is thus prejudicial to Defendants.
addition, "where the movant first presents a theory
difficult to establish but favorable and, only after that
fails, a less favorable theory, denial of leave to amend on
the grounds of bad faith may be appropriate."
Dussouy v. Gulf Coast Inc. Corp.660 F.2d 594. 599
(5th Cir. 1 981). In this case. Johnson first presented a
theory that his "conditional settlement constitutes a
valid accord and satisfaction" of his student loans. ECF
No. 10 at 14. and now. only after the Court has found that
such a theory is barred by collateral estoppel. Johnson
advances a theory that the settlement check "should have
reduced" the balance. See ECF No. 51-1 at 7-8.
See Horton v. Vinson, No. E14CV192. 2015 WI.
4774276. at *29 (N.D. W.Va. Aug. 12. 201 5) (denying leave to
amend and agreeing that "[o]nly after [plaintiff] became
aware of the limitations on pleading . . . [the] claims
through motions practice did he mention any of these new
factual allegations, leading to the natural conclusion that
he has chosen to add these allegations in bad faith .
..") (internal citations and alterations omitted). This,
coupled with Johnson's well-established history as
"a serial litigator who is on a decade-long quest
(undeterred by lack of success at each instance) to avoid
paying student loans that he took out from 1993 to ...