United States District Court, D. New Jersey
ARTHUR B. CAPONEGRO, Plaintiff,
THE UNITED STATES DEPARMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
Michael A. Hammer United States Magistrate Judge.
matter comes before the Court by way of Plaintiff's
motion for leave to amend his Complaint. Mot. for Leave to
Am. and Supp. Compl., May 15, 2019, D.E. 103. First National
Bank of Layton opposes the motion. Opp'n Br., July 5,
2019, D.E. 104. Pursuant to Federal Rule of Civil Procedure
78 and Local Civil Rule 78.1, the Court has decided this
motion on the papers. For the reasons set forth below,
Plaintiff's motion to amend is denied with prejudice.
BACKGROUND AND PROCEDURAL HISTORY
Caponegro, acting pro se, initiated this action on
May 19, 2015, against Defendants, First National Bank of
Layton (“FNBL”) and the United States Department
of Housing and Urban Development (“HUD”), in
relation to a reverse mortgage transaction he entered into
with FNBL on July 23, 2012, pursuant to HUD's Home Equity
Conversion Mortgage program (“HECM mortgage”).
Compl., May 19, 2015, D.E. 1. FNBL moved to dismiss
Plaintiff's Complaint shortly thereafter. Mot. to
Dismiss, July 6, 2015, D.E. 7.
FNBL's motion to dismiss the Complaint was pending,
Plaintiff pro se filed an Amended Complaint. Am.
Compl., Aug. 26, 2015, D.E. 11. On April 1, 2016, counsel,
Kenneth Marano, Esq., entered a notice of appearance on
Plaintiff's behalf. Notice of Appearance, Apr. 1, 2016,
D.E. 26. On August 16, 2016, after this Court granted
Plaintiff's request for leave of Court, Plaintiff's
counsel filed a Second Amended Complaint. Am. Compl., Aug.
16, 2016, D.E. 33. The Second Amended Complaint alleged four
counts, only two of which appeared to be alleged against
FNBL: breach of contract (Count 1) and negligence (Count
Second Am. Compl. Aug. 16, 2016, D.E. 33. The breach of
contract claim also appeared to contain allegations sounding
in fraud; more specifically, that FNBL forged Plaintiff's
signature, falsified documents, and made misrepresentations.
Id. On November 21, 2016, FNBL moved to dismiss the
claims against it. Mot. to Dismiss, Nov. 21, 2016, D.E. 41.
October 12, 2016, Plaintiff filed a letter with the Court,
seeking an Order terminating his counsel and permitting him
to once again proceed pro se. D.E. 38. After a
hearing on February 1, 2017, this Court granted
Plaintiff's request. Order, D.E. 49. On May 11, 2017, new
counsel for Plaintiff, Toni Belford Damiano, Esq., entered an
appearance on Plaintiff's behalf. Notice of Appearance,
18, 2017, Judge McNulty granted FNBL's motion to dismiss,
finding that the Second Amended Complaint: (1) lacked clarity
and specificity; (2) lacked precision as to which claim was
directed against which Defendant because “it [was] not
always possible to confidently infer against which of the
defendants an allegation [was] directed;” and (3)
failed to meet the heightened pleading standard for forgery
and fraudulent misrepresentation claims. Mem. Op., May 18,
2017, D.E. 61, at 1, 7-10. Additionally, Judge McNulty
determined that Plaintiff insufficiently pled negligence
because there was no assertion FNBL owed any duty to him
independent of those arising under the contract. Id.
at 12. Finally, Judge McNulty found no feasible breach of
contract claim because Plaintiff failed to state the contract
or contractual provision at issue. Id. at 10.
June 13, 2017, and May 15, 2019, when Plaintiff filed the
motion that is the subject of the present Opinion, Plaintiff
had moved eight times for leave to amend. Three of those
motions were denied on procedural grounds. One motion was
terminated as moot. The other four motions were all addressed
on their merits. Each is address herein.
13, 2017, Plaintiff's counsel filed his first motion to
amend, consistent with Judge McNulty's Opinion and Order
which permitted the filing of a motion to amend within thirty
days. Mot. to Am., June 13, 2017, D.E. 64. This motion was
denied on procedural grounds because the filing did not
contain a brief, proposed order, notice of motion,
certificate of service, or the proposed amended pleading.
Order, June 14, 2017, D.E. 65. Plaintiff's counsel filed
a second motion to amend on June 15, 2017. Mot. to Am., June
15, 2017, D.E. 66. On July 7, 2017, that motion was
terminated as moot because Plaintiff's counsel had filed
a third motion to amend on July 5, 2017. Order, July 7, 2017,
D.E. 70; Mot. to Am., July 5, 2017, D.E. 69.
proposed Third Amended Complaint was attached to the July 5,
2017 motion, and asserted two claims against FNBL, breach of
contract and fraudulent misrepresentation. Prop. Am. Compl.,
Jul. 5, 2017, D.E. 69, ¶¶ 27-80. Plaintiff alleged
that there were two different HECM mortgages, the first of
which disappeared from the County Recorder's Office and
was replaced by the second. Id. at ¶¶ 17,
21, 23. Plaintiff alleges that the second HECM Mortgage was
either forged, he was coerced into signing it, or both.
Id. FNBL opposed the motion on the grounds of
futility and undue prejudice. Opp'n Br., Aug. 8, 2017,
D.E. 73. On January 25, 2018, in an oral Opinion placed on
the record, this Court denied Plaintiff's motion to amend
because it found that permitting the amendment would be
futile. The proposed Amended Complaint remained confusingly
ambiguous, and had not cured the deficiencies outlined by
Judge McNulty in his May 18, 2017 Opinion. Order, Jan. 25,
2018, D.E. 80.
February 15, 2018, Plaintiff filed a fourth motion to amend.
Mot. to Am. Compl., Feb. 15, 2018, D.E. 81. On May 8, 2018,
this Court again denied Plaintiff's motion to amend,
finding this proposed Third Amended Complaint nearly
identical to the July 5, 2017 proposed amendment, and so
suffered from the same infirmities. Order, May 8, 2018, D.E.
83. Specifically, Plaintiff failed to articulate whether his
signature on the “second mortgage” was forged or
whether FNBL coerced him into signing it. Id.
Second, Plaintiff failed to clearly state which contract was
allegedly breached. Id.
8, 2018, Plaintiff filed fifth motion to amend the Complaint,
which this Court denied on procedural grounds on July 5,
2018, because Plaintiff failed to file a brief in support of
the motion or a statement explaining why no brief was
necessary. Mot. to Am. Compl., Jun. 8, 2018, D.E. 84; Order,
Jul. 5, 2018 D.E. 85. On July 6, 2018, Plaintiff filed a
sixth motion to amend his Complaint. Mot. to File Am. Compl.,
July 6, 2018, D.E. 86. On November 1, 2018, this Court again
denied the amendment, finding that it would be futile because
the proposed Amended Complaint was confusing due to its
inconsistent factual allegations. The Court further concluded
that the proposed amendment was devoid of the necessary
factual support to maintain claims for breach of contract,
forgery, fraudulent misrepresentation, and fraud in the
inducement. Opinion, Nov. 1, 2018, D.E. 91; Order, Nov. 1,
2018, D.E. 92.
November 9, 2018, Plaintiff's attorney moved to withdraw,
and after oral argument was heard on the matter, this Court
granted the motion. Mot. to Withdraw, Nov. 9, 2018, D.E. 93;
Order, Jan. 29, 2019, D.E. 96. On March 5, 2019, Plaintiff,
again proceeding pro se, filed a seventh motion to
file a Third Amended Complaint. Mot. to Am. Compl., March 5,
2019, D.E. 97. This Court denied Plaintiff's motion
without prejudice on procedural grounds because it did not
contain a red-lined version of the amended pleading. Order,
Apr. 10, 2019, D.E. 99.
15, 2019,  Plaintiff filed the eighth and instant
motion to amend his Complaint. Mot. to File Am. Compl., May
15, 2019, D.E. 103. In this latest iteration, Plaintiff
asserts two causes of action against FNBL: (1) fraudulent
misrepresentation; and (2) breach of contract. Id.
at 4. FNBL opposes the motion, arguing that Plaintiff again
fails to advance any colorable claim against ...