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Tobias v. United States

United States District Court, D. New Jersey

November 26, 2014

EDWARD TOBIAS, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al. Defendants

For EDWARD N. TOBIAS, SUZANNE M. KOEGLER, Plaintiffs: EDWARD N. TOBIAS, LEAD ATTORNEY, Mullica Hill, NJ.

For STATE OF NEW JERSEY, CHRISTOPHER J. CHRISTIE, Governor, HOWARD J. MCCOACH, DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION, Defendants: DEBRA A. ALLEN, LEAD ATTORNEY, NEW JERSEY ATTORNEY GENERAL'S OFFICE, R.J. HUGHES JUSTICE COMPLEX, TRENTON, NJ.

For STATE OF NEW YORK, ANDREW M. CUOMO, Governor, Defendants: ANTHONY J. TOMARI, LEAD ATTORNEY, STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL, NEW YORK, NY.

For WRIGHT NATIONAL FLOOD INSURANCE CO., formerly known as FIDELITY NATIONAL PROPERTY & CASUALTY INSURANCE CO., Defendant: PATRICK W. BROPHY, LEAD ATTORNEY, MCMAHON, MARTINE & GALLAGHER, ESQS., Brooklyn, NY.

For DENIS A. MILLER, DENIS A. MILLER INSURANCE AGENCY, Defendants: DAVID P. SKAND, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott, LLC, Trenton, NJ; JASON S. FEINSTEIN, ECKERT SEAMANS CHERIN & MELLOTT, LLC, TRENTON, NJ.

For LIBERTY MUTUAL INSURANCE CO., Defendant: WILLIAM P. KRAUSS, LEAD ATTORNEY, CONNELL FOLEY LLP, ROSELAND, NJ.

For WILLIAM C. ERBEY, Executive Chairman, Ocwen Financial Corporation, OCWEN FINANCIAL CORPORATION, OCWEN LOAN SERVICING, L.L.C., Defendants: MICHAEL P. TRAINOR, LEAD ATTORNEY, BLANK ROME LLP, PHILADELPHIA, PA.

MEMORANDUM OPINION

HONORABLE TONIANNE J. BONGIOVANNI, UNITED STATES MAGISTRATE JUDGE.

Currently pending before the Court is Plaintiffs Edward N. Tobias and Suzanne M. Koegler's (" Plaintiffs") motion seeking leave to file an Amended Complaint to account for the significant factual and procedural developments that have occurred since the original Complaint was filed, which are necessary to satisfy the pleading requirements of Fed.R.Civ.P. 8 and to formally respond to Defendants' Motion for a More Definite Statement by supplementing the original Complaint. Plaintiffs further seek to implead the United States of America and the State of New York to enforce their obligations set forth under the Home Affordable Modification Program (" HAMP"), the Home Affordable Refinance Program (" HARP"), and Part 419 of the New York State Banking Department Regulations. Defendants oppose Plaintiffs' motion. The Court has fully reviewed the papers submitted in support of and in opposition to Plaintiffs' motion. The Court considers Plaintiffs' motion without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth below, Plaintiffs' motion is DENIED.

I. Background and Procedural History

Plaintiffs contend that Defendants did not adequately compensate Plaintiffs under flood and homeowners insurance policies for damages to three houses sustained during Superstorm Sandy. Plaintiffs allege that federal and state governmental agencies/ entities had controlling fiduciary and fiscal agency relationships over the federal funds payable under policies of flood insurance and acted in the de facto role as " real party in interest" and actual possessors of these disputed federal funds. ( See Complaint; Docket Entry No. 1) Plaintiffs filed their initial Complaint on October 28, 2013.

Defendant, Wright National Flood Insurance Co., filed their Answer on November 20, 2013. ( See Answer; Docket Entry No. 4) Defendant, Liberty Mutual Insurance Co., filed their Answer on December 19, 2013. ( See Answer; Docket Entry No. 7) Defendants Christopher J. Christie, Howard J. McCoach, Sandy Recovery Division, the State of New Jersey, and the Department of Community Affairs filed their Answer on January 17, 2014. ( See Answer; Docket Entry No. 21) On March 6, 2014, pursuant to Fed.R.Civ.P. 4(m), co-defendants President Obama, the United States of America, the U.S. Department of Home Land Security, FEMA, and the New York Rising Recreate Housing Community Recovery Program were all dismissed. ( See Letter Order; Docket Entry No. 40.) Defendants, William C. Erby, GMAC Mortgage Co., LLC, Ocwen Financial, Ocwen Loan Services, LLC, Governor Andrew M. Cuomo, the State of New York, and defendants filed motions to dismiss. ( See Motion to Dismiss; Docket Entry No. 8) Defendants, Denis A. Miller Insurance Agency and Denis A. Miller, individually, filed a Motion to Dismiss on March 10, 2014 based upon failure to state a claim and for lack of personal jurisdiction. ( See Motion to Dismiss; Docket Entry No. 41)

On March 20, 2014, Plaintiffs filed their Opposition to the Motion to Dismiss. Plaintiffs attempted to amend their Complaint to add a negligence claim against Miller Defendants. ( See Letter Brief in Opposition; Docket Entry No. 44) Plaintiffs asserted that there was " further factual information ... the substance of which should be also known by the moving defendants through a review of their corporate records." (Id. at page 2) Plaintiffs submitted that the proposed count is more specifically plead as requesting relief against defendants on the basis of negligence, whether by common law, state law, or federal law as discovery in this matter should evidence. (Id. at page 3)

On April 3, 2014, the District Court entered a Letter Order stating " to the extent that Plaintiffs attempted through their letter brief (response to Defendants' Motion to Dismiss) to, for example, expand upon the facts pled in the original Complaint, the Court notes that it is well-established that a Plaintiff cannot amend his Complaint by way of a brief in response to a motion to dismiss. ( See Letter Order; Docket Entry No. 53)(quoting Commw. Of Pa. Ex. Rel Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 181 (3d Cir. 1988)) The Court ...


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