UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES R. HAYNES,
Plaintiff,
v. Civil Action No. 11-00614 (CKK)
NAVY FEDERAL CREDIT UNION,
Defendant.
MEMORANDUM OPINION AND ORDER
(April 3, 2012)
Plaintiff James R. Haynes (“Haynes”) brings this action against Defendant Navy Federal
Credit Union (“NFCU”), asserting a handful of claims relating to a home mortgage loan extended
to him by NFCU.1 Before the Court is Haynes’ [32] Motion to Amend Complaint (“Motion to
Amend”).2 Upon consideration of Haynes’ submissions, the relevant authorities, and the record
as a whole, the [32] Motion to Amend shall be DENIED.
LEGAL STANDARD AND DISCUSSION
Under the Federal Rules of Civil Procedure, a party may amend his pleadings once as a
matter of course within a prescribed time period. See FED . R. CIV . P. 15(a)(1). When a party
seeks to amend his pleadings outside that time period or for a second time, he may do so only
with the opposing party’s written consent or the district court’s leave. See FED . R. CIV . P.
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Although Haynes is proceeding pro se, he is an attorney and is presumed to have
knowledge of the legal system. Curran v. Holder, 626 F. Supp. 2d 30, 33 (D.D.C. 2009). As a
result, he is not entitled to the same level of solicitude often afforded litigants proceeding without
legal representation. Baird v. Snowbarger, 744 F. Supp. 2d 279, 286 (D.D.C. 2010), aff’d in part
and vacated in part sub nom. Baird v. Gautbaum, 662 F.3d 1246 (D.C. Cir. 2011).
2
Contrary to Haynes’ assertion, this is his second motion for leave to amend his
Complaint, not his first. See Pl.’s [10] Court Ordered Notice; [11] Order (May 31, 2011).
15(a)(2). The decision whether to grant leave to amend a complaint is entrusted to the sound
discretion of the district court, but leave “should be freely given unless there is a good reason,
such as futility, to the contrary.” Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003
(D.C. Cir. 1996), cert. denied, 520 U.S. 1197 (1997). As the Supreme Court has observed:
If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits. In the absence of any apparent or
declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be
“freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
Through his [32] Motion to Amend, in addition to undertaking minor housekeeping
matters, Haynes seeks to add a claim entitled “PER SE IRS CODE VIOLATIONS,” alleging:
Plaintiff did not receive an accurate or correct Form 1098 interest
statement from the Defendant for the tax year 2010 which was due in
January 2011, and the Defendant has refused to credit all interest
payments for 2010. These actions are a violation of the IRC, 26
U.S.C. Sections 6001-6049. Plaintiff has a right to IRC Section 163
(h) interest statements to prepare his Form 1040 tax return. Plaintiff
is exposed to felonious charges if he files erroneous tax returns.
Defendant is also in violation of Section 6721 et al. of the Internal
Revenue Code per se. We seek $500,000 in damages and costs from
the Defendant.
Pl.’s [32-1] Proposed Second Am. Compl. at 2. For at least two reasons, the Court shall exercise
its discretion to DENY Haynes’ Motion to Amend.
First, Local Civil Rule 7(m) requires a party to discuss any anticipated non-dispositive
motion with opposing counsel, “in a good faith effort to determine whether there is any
opposition to the relief sought and, if there is an opposition, to narrow the areas of
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disagreement.” LCV R 7(m). This rule applies with equal force to “non-incarcerated parties
appearing pro se.” Id. As this Court has recognized, this Rule serves the important salutary
purpose of “promot[ing] the resolution of as many litigation disputes as possible without court
intervention, or at least to force the parties to narrow the issues that must be brought to the
court.” Ellipso, Inc. v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006) (citing U.S. ex rel. Pogue
v. Diabetes Treatment Ctrs. of Am., 235 F.R.D. 521, 529 (D.D.C. 2006)). Where “a party files a
nondispositive motion without certifying its compliance with Rule 7(m), the motion will be
denied.” Id. (citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 185, 187 (D.D.C.
1999)). In this case, Haynes has failed to certify his compliance with Local Civil Rule 7(m) and
his Motion to Amend shall be DENIED on that basis alone.
Second, the more fundamental problem with Haynes’ Motion to Amend is that, by his
own admission, it seeks to resurrect the same claim that was previously dismissed by this Court
when resolving NFCU’s prior Motion to Dismiss. See Haynes v. Navy Fed. Credit Union, __ F.
Supp. 2d __, 2011 WL 5867062, at *8-9 (D.D.C. Nov. 23, 2011). In his [12] Amended
Complaint, Haynes similarly alleged that NFCU failed to provide him with “an accurate and
correct interest statement” for tax-year 2010 and faulted NFCU for allegedly refusing to credit
certain interest payments, all of which he contended was in “violation of the IRS code.” When
NFCU argued in its Motion to Dismiss that there is no private right of action for violations of the
pertinent provisions of the Internal Revenue Code, Haynes admitted that he was unable to point
to a provision in the Internal Revenue Code or the accompanying regulations requiring a lender
to furnish a borrower an interest statement and conceded that his claim should be dismissed to
the extent it rested on alleged violations of the Internal Revenue Code and accompanying
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regulations. See Def.’s [13] Mem. of P. & A. in Supp. of its Mot. to Dismiss the Am. Compl. at
10; Pl.’s [15] Opp’n to Def.’s Mot. to Dismiss with P. & A. in Supp. Thereof at 5-6. Based on
this explicit concession, the Court granted NFCU’s Motion to Dismiss insofar as it sought the
dismissal of that particular claim. See Haynes, 2011 WL 5867062, at *8-9.
As this sequence of events makes plain, Haynes had a full and fair opportunity to respond
to the merits of NFCU’s argument and to identify the purported legal basis for his claim. But he
did not do so. Instead, he elected to concede the merits of NFCU’s argument. Despite the
liberality of the standard for granting leave to amend, there is no doubt that the district court has
the discretion to deny a plaintiff leave to amend his or her complaint to add claims already
dismissed. See Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002)
(“A [d]istrict [c]ourt has discretion to deny a plaintiff leave to amend where the plaintiff was put
on notice as to the deficiencies in his complaint, but chose not to resolve them.”) (citation
omitted), cert. denied, 537 U.S. 1113 (2003); Henderson v. Frank, 293 F. App’x 410, 414 (7th
Cir. 2008) (district court did not err in refusing to allow plaintiff to amend complaint containing
claims already dismissed). When parties are put on notice of potential deficiencies in their
pleadings through a dispositive motion, they fail to “avail themselves of an opportunity to rectify
the deficiencies” “at their peril.” Ca. Pub. Emps.’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 165
(3d Cir. 2004); Hester v. Int’l Union of Operating Eng’rs, AFL-CIO, 941 F.2d 1574, 1578-79
(11th Cir. 1991) (upholding the district court’s denial of leave to amend, where district court
found that the motion amounted to an attempt to “resurrect” a claim and plaintiff had the
opportunity to correct the deficiencies earlier). In this case, not only did Haynes fail to promptly
rectify the deficiencies in his Amended Complaint that were challenged in NFCU’s Motion to
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Dismiss, he expressly conceded the merits. Cf. Wopsock v. Natchees, 279 F. App’x 679, 689
(10th Cir. 2008) (district court was within its discretion to deny leave to amend a second time
where plaintiffs responded to the defendants’ motion for dismissal and waited to seek leave to
amend until after the motion was fully briefed and resolved by the district court). Under these
circumstances, the Court finds that granting leave to amend is inappropriate and therefore
Haynes’ [32] Motion to Amend shall be DENIED on this separate, independent basis.
CONCLUSION AND ORDER
For the reasons set forth above, it is, this 3rd day of April, 2012, hereby
ORDERED that Haynes’ [32] Motion to Amend is DENIED; and it is further
ORDERED that the Clerk of the Court shall mail a copy of this Memorandum Opinion
and Order to Haynes at his address of record.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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