United States District Court, S.D. Indiana, Indianapolis Division
JAMES R. TURNER, Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
ENTRY ON PLAINTIFF'S MOTION TO JOIN A. J. LOLL AS
A PARTY DEFENDANT and PLAINTIFF'S MOTION FOR LEAVE TO
FILE SECOND AMENDED COMPLAINT
RICHARD L. YOUNG, CHIEF JUDGE
James R. Turner, moves to join A. J. Loll as a party
defendant with regard to Count I of his First Amended
Complaint (“FAC”) and seeks leave to file a
Second Amended Complaint (“SAC”). For the reasons
explained below, both motions are DENIED.
January 5, 2010, Nationstar Mortgage, LLC, filed a
Foreclosure Action against Plaintiff. On October 9, 2012,
Plaintiff filed an Amended Counterclaim, alleging Nationstar
(formerly “Centex”) violated the Indiana Home
Loan Practices Act (“IHLPA”) during the
loan's origination. On October 12, 2012, the parties met
for a formal and confidential mediation of the Foreclosure
Action, in an attempt to settle the Foreclosure Action and
the Counterclaim. Mr. Loll appeared on behalf of Nationstar.
As a result of the mediation, the parties executed a
Settlement Agreement. After three years litigating
Nationstar's motion to enforce the Settlement Agreement,
on January 22, 2015, the Monroe Circuit Court entered its
Judgment of Foreclosure resolving the Foreclosure Action in
Nationstar's favor and dismissing the Counterclaim with
Count I, Plaintiff alleges that Mr. Loll failed to disclose
during the mediation that Nationstar was merely the servicer,
and not the owner, of Plaintiff's mortgage. (Filing No.
10, FAC ¶ 80). He alleges Nationstar and Mr. Loll
committed a deceptive act in violation of the IHLPA, Ind.
Code § 24-9-3-7(c)(3), “by allowing [him] to
continue under the false belief that Nationstar owned the
Mortgage loan such that Plaintiff believed he was bargaining
with the owner of the Mortgage loan when he agreed to
exchange his counterclaim against Nationstar for a loan
modification.” (Id. ¶ 82).
a January 2016 agreed modification of the subject loan, the
foreclosure judgment was vacated and dismissed on May 26,
27, 2016, Plaintiff filed both the Motion to Join A.J. Loll
as a Party Defendant and the Motion for Leave to File Second
Amended Complaint. Plaintiff seeks leave to amend the FAC to
add Mr. Loll as a defendant, to “update certain
allegations regarding the status of the state court judgment
of foreclosure and [to] explain A. J. Loll's role in
the commission of the deceptive act under the IHLPA.”
(Filing No. 54, Motion for Leave at 1).
Motion to Join
to join under Fed.R.Civ.P. 20 are permissive and vest
discretion in the district court. Intercon Research
Assoc. v. Dresser Indus., 696 F.2d 53, 56 (7th Cir.
1982). A party seeking joinder must satisfy two requirements:
“(1) a right to relief must be asserted by the
plaintiff against each defendant relating to or arising out
of the same transaction or series of transactions; and (2)
some common question of law or fact must be present with
respect to all parties in the action (i.e. a common
thread).” Id. at 57. In addition to the
threshold, two-prong, test of Rule 20(a), “‘a
trial court must also examine the other relevant factors in a
case in order to determine whether the permissive joinder of
a party will comport with the principles of fundamental
fairness.'” Id. at 58 (quoting Desert
Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375
(9th Cir. 1980)). “In summary, Rule 20(a) was designed
to allow a plaintiff to join only those parties against whom
the plaintiff has a legitimate claim.” Id.
fails to allege facts in his Proposed SAC that could be
construed as a claim for recovery against Mr. Loll
individually. Indeed, he alleges that Mr. Loll appeared at
the confidential 2012 mediation “while acting on behalf
of Nationstar and within the scope of his employment.”
(Filing No. 54-1, Proposed SAC ¶ 24.1). As such, he
cannot be personally liable to Plaintiff. Pazimino v.
Bose McKinney & Evans, LLP, 989 N.E.2d 784, 790
(Ind.Ct.App. 2013) (holding an LLC is legally responsible for
the acts of its agent working within the scope of his
employment). Therefore, Plaintiff's Motion to Join A. J.
Lott as a Party Defendant (Filing No. 53) is DENIED.
Motion for Leave to File Second Amended Complaint
its terms, Rule 15(a) gives discretion to the district court
in deciding whether to grant a motion to amend a pleading to
add a party or claim.” Krupski v. Costa Crociere S.
p. A., 560 U.S. 538, 553 (2010). After a party amends a
pleading once “as a matter of course, ” the party
may amend the pleading only with the opposing party's
consent or with leave of court, which should be given
“when justice so requires.” Id. (citing
Fed.R.Civ.P. 15(a)(1)-(2)). Nevertheless, the court may deny
leave to amend “where there is undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue
prejudice to the defendants, or where the amendment would be
futile.” Arreola v. Godinez, 546 F.3d 788, 796
(7th Cir. 2008).
an amendment to add Mr. Loll as a party defendant would be
futile for the reasons explained above. Moreover, additional
allegations concerning Mr. Loll's role in the deception
do not add any necessary information. For example, the
Proposed SAC alleges that Mr. Loll and Nationstar's
attorney, Brian Jones, attended the mediation, and failed to
disclose that the ...