Tilbury v. Aames Home Loan , 199 F. App'x 122 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-7-2006
Tilbury v. Aames Home Loan
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1214
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1214
________________
DAVID L. TILBURY; ANN E. TILBURY,
Appellants
v.
AAMES HOME LOAN, a/k/a Aames Funding Corp, a/k/a Aames
Financial Corporation; A. JAY MEYERSON, CEO of Aames;
HAROLD G. BELKOWITZ, Counsel for Aames; FIRST AMERICAN TITLE
INSURANCE COMPANY; GARY L. KERMOTT; NANCY NEWMAN-BROWN;
GEORGE M. CONWAY, III; STEPHEN MCNALLY; CENLAR F.S.B.;
MICHAEL W. YOUNG, CEO; KIMBERLY ANN GLOSSO HAGEN;
KELLY LUTZ; NANCY IRWIN; TERRY KANE; KRISTIN SHELLENBERGER;
ROSEMARY L. LEONARDIS; SHARI SEFFER; MICHAEL S. ACKERMAN;
JONATHAN M. PREZIOSI; MELISSA A. CHUDEREWICZ, Esq.;
BRUCE M. SATTIN, Esq.; ANDREW B. FINBERG; GRAIG L.
WELLERSON, J.S.C.; ADMINISTRATIVE OFFICE OF THE COURTS-STATE
OF NEW JERSEY; PHILIP S. CARCHMAN, J.A.D.; JUDE DELPREORE, T.C.A.;
RONALD E. BOOKBINDER, J.C.H.; JOHN DOE, and Jane Doe, Operator and/or
controller of Court Recording device
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-02033)
District Judge: Honorable Freda L. Wolfson
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
SEPTEMBER 5, 2006
Before: SLOVITER, SMITH AND VANANTWERPEN, Circuit Judges.
(Filed: September 7, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Appellants, David and Ann Tilbury, appeal from the District Court’s Order
dismissing their complaint and barring them from filing further civil actions related to this
matter in the United States District Court for the District of New Jersey in a pro se
capacity without prior leave of the court. We will affirm the District Court’s judgment
and its decision to issue an order enjoining further pro se filings by the Tilburys.
The procedural background as well as the factual allegations underlying this cause
of action are well known by the parties and need not be detailed here. Briefly, we note
that appellants have a long tortured litigation history regarding the amount due on their
1985 mortgage. As summarized by the District Court, “the Tilburys have filed no fewer
than seven bankruptcy petitions, three appeals or lawsuits in the United States District
Court, two appeals to [this Court], and numerous state court actions arising in connection
with certain of their loans and mortgages.” District Court Amended Opinion at 3-4. With
respect to their most recent federal filing (i.e., the one underlying this appeal), the District
Court was not exaggerating when it remarked that the Tilburys’ complaint “is an example
of an ‘everything but the kitchen sink’ pleading in which they sue almost everyone ‘under
the sun.’” Id. at 16. According to the Tilburys, appellees have violated, inter alia, the
Truth in Lending Act (“TILA”), Fair Housing Act, Real Estate Settlement Procedures Act
(“RESPA”), Racketeering Influenced and Corrupt Organizations Act (“RICO”), False
Statements Act, United States Constitution and the New Jersey Consumer Fraud Act
during their various dealings with appellants. Additionally, the Tilburys allege that
certain appellees conspired to defraud the Department of Housing and Urban
Development (“HUD”), made false statements to HUD, and committed fraud, negligence
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and breach of contract.
The complaint was voluntarily dismissed as to defendants Belkowitz, the
Administrative Office of the New Jersey Courts, Philip Carchman, Jude Delpreore, and
Judges Bookbinder and Wellerson. As for the remaining defendants, the District Court
granted the numerous motions to dismiss that had been filed pursuant to Fed. R. Civ. P.
12(b)(6) in an Amended Opinion and Order entered on December 13, 2005. The District
Court found that the majority of the claims asserted by the Tilburys had already been
brought before another court and had been dismissed. Id., citing Tilbury v. Aames, et al.,
Burlington County, Law Division, Case No. L-000667-02. The court further found that
the Tilburys had attempted to amend the complaint filed in the Burlington County case to
include the allegation that the various entities’ conduct arising from the same transaction
and occurrences at issue in the District Court action amounted to a RICO violation, but
that the court in that case denied the Tilburys’ motion for leave to amend because it was,
inter alia, untimely filed. Accordingly, the court concluded that the claims against
Aames, Cenlar and First American Title Insurance Company (“FATICO”), and their
employees and attorneys were barred by New Jersey’s entire controversy doctrine and by
res judicata principles.1
Defendants Sattin and Finberg were dismissed pursuant to Fed. R. Civ. P. 4(m)
given the Tilburys’ failure to properly effect service of their complaint upon these
defendants, and the claims arising from the proceedings before Judge Wellerson were
1
The following defendants were included in this grouping: 1) Aames and A. Jay
Meyerson, Aames’ CEO; 2) FATICO and FATICO defendants Kermott, Newman-
Brown, Conway, McNally; and 3) Cenlar and Cenlar defendants Seffer, Young, Glosso
Hagen, Lutz, Irwin, Kane, Shellenberger and Leonardis.
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dismissed as baseless. The District Court continued its analysis by stating that the
Tilburys’ “allegations against the various lawyers, employees of Cenlar, Aames and
FATICO, and the courts are based upon their misguided view that anyone who does not
see things their way or is dealing in an adverse fashion to them must be acting in a
conspiratorial and illegal manner.” Id. After determining that the complaint was
“without any legal basis,” the District Court dismissed it in its entirety.
The court next turned its attention to defendants’ motions seeking to enjoin the
Tilburys from filing future complaints in the District Court for the District of New Jersey
without first obtaining leave of the court. Having concluded that the Tilburys engaged in
the repeated filing of oppressive and frivolous litigation, the court exercised its inherent
authority under the All Writs Act, 28 U.S.C. § 1651(a), and issued an injunction against
the Tilburys. With the exception of the instant appeal, the court enjoined David and Ann
Tilbury from filing any complaint or papers, when proceeding pro se, “against any of the
named defendants or any employee, agent, or attorney thereof,” without prior leave of the
court. The Tilburys timely appealed.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of a
motion to dismiss de novo, see Alston v. Parker, 363 F.3d 229, 232-33 (3d Cir. 2004),
and review the District Court’s injunction order for an abuse of discretion. Matter of
Packer Ave. Associates, 884 F.2d 745, 746 (3d Cir. 1989). We will affirm a dismissal for
failure to state a claim if we can “say with assurance that under the allegations of the pro
se complaint, which we hold to less stringent standards than formal pleadings drafted by
lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’” McDowell v. Delaware State Police, 88
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F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The
Tilburys raise a myriad of issues on appeal. However, because we have determined that
those issues are without any legal and/or factual merit, we dispose of them with little or
no discussion.
Initially, we address the Tilburys’ argument that the District Court’s order of
dismissal must be reversed because the court improperly converted defendants’ motions
to dismiss to motions for summary judgment by examining evidence outside the
complaint. When reviewing a complaint under Fed. R. Civ. P. 12(b)(6), a court may
examine the facts as alleged in the pleadings as well as “matters of public record, orders,
exhibits attached to the complaint, and items appearing in the record of the case.” See
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994)
(citations omitted). Additionally, “[a]lthough a District Court may not consider matters
extraneous to the pleadings, ‘a document integral to or explicitly relied upon in the
complaint may be considered without converting the motion to dismiss into one for
summary judgment.’” U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.
2002), quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir.1997) (internal quotations omitted). It does not appear that the District Court
examined any evidence not properly before the court on a motion to dismiss. Moreover,
even if such a conversion had occurred in the instant case, such error would arguably
have been harmless as the Tilburys’ responses indicate that they believed the defendants’
motions provided notice of the possibility of summary disposition and they certainly took
the opportunity to respond accordingly prior to the District Court’s entry of judgment.
See, e.g., Schering Corp. v. Food and Drug Admin., 51 F.3d 390, 400 (3d Cir. 1995);
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Hancock Industries v. Shaeffer, 811 F.2d 225, 228 (3d Cir.1987). We need not decide
this issue definitively, however, as the District Court explicitly concluded that it was not
converting defendants’ motions into ones for summary judgment, and we can find no
fault with that conclusion.
With respect to the District Court’s decision to grant defendants’ motions to
dismiss, we will affirm the entry of judgment for essentially the same reasons set forth by
the District Court and do so with little discussion given the amount of judicial resources
already expended in reviewing the Tilburys’ claims. Briefly, the Entire Controversy
Doctrine – which “stems directly from the principles underlying the doctrine of res
judicata,” Prevratil v. Mohr, 678 A.2d 243, 246 (N.J. 1996), and is codified in New Jersey
Civil Practice Rule 4:30A – seeks to assure that all aspects of a legal dispute occur in a
single lawsuit. Olds v. Donnelly, 696 A.2d 633, 637 (N.J. 1997). Although the doctrine
no longer requires joinder of all parties in one lawsuit, parties must present all claims
arising out of a controversy. See Mitchell v. Procini, 752 A.2d 349, 352 (N.J. Super.
App. Div. 2000)(discussing evolution of the doctrine). To determine whether the doctrine
bars a second action, a court considers whether the claims raised arise from related facts
or the same transaction, whether application of the doctrine is fair and whether its
application would promote judicial economy. DiTrolio v. Antiles, 662 A.2d 494, 502-07
(N.J. 1995). The District Court’s opinion adequately discusses the application of these
principles to the Aames, Cenlar and FATICO defendants, and we need not repeat that
analysis here. See District Court’s Amended Opinion at 18-21. We would simply note
our agreement with the District Court’s determination that the claims raised in the
underlying complaint were either previously addressed in the state court proceedings, or
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necessarily arise from the same facts and transactions as the claims raised in the state
court action and, therefore, should have been joined in the state court complaint.
To the extent that any of appellants’ claims can arguably be said to have survived
application of these preclusion principles with respect to any particular party, we agree
with the District Court’s general conclusion that the “entire complaint is without any legal
basis or justification and borders on paranoia.” Id. at 22. We likewise agree with the
various appellees’ contentions that dismissal was ultimately warranted because the
Tilburys’ complaint fails to state a claim for which relief can be granted, and that
affirmance of the District Court’s order of dismissal is therefore warranted. See Hi Tech
Trans, LLC v. New Jersey, 382 F.3d 295, 297 (3d Cir. 2004), citing Nicini v. Morra, 212
F.3d 798, 805 (3d Cir. 2000) (court of appeals may affirm for any reason supported by the
record). Appellants failed to assert any facts, other than mere conclusory allegations, that
could potentially support their RICO, conspiracy and/or fraud allegations. See Sedima,
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); Lum v. Bank of America, 361 F.3d
217, 223-24 (3d Cir. 2004). Their TILA and RESPA claims are clearly time barred, see
15 U.S.C. § 1640(e) and 12 U.S.C. § 2614, and their attempt to create a new cause of
action under RESPA simply by corresponding with certain appellees and then challenging
the resultant responses which were based directly on the underlying state court litigation
is disingenuous at best. We have carefully considered appellants’ other allegations of
error and find them to be meritless.
Finally, we are asked to review whether the District Court abused its
discretion in granting the defendants’ motions to bar the Tilburys from further filings
without leave of the court. In particular, the court enjoined the Tilburys, unless they are
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represented by a licensed attorney admitted to practice in the United States District Court
for the District of New Jersey, from filing against “the defendants named in the
underlying action, or any employee, agent, or attorney thereof” (a) any action within that
court, (b) any action or proceeding in any federal court, and (c) any further papers in any
pending or terminated case in that court without first obtaining leave of the District Court.
See Order entered December 13, 2005 at 2.
An injunction is an extreme remedy, but we will affirm the grant of an injunction if
the enjoined litigant was given notice and opportunity to be heard, and the injunction is
narrowly tailored to fit the particular circumstances of the case. See Brow v. Farrelly,
994 F.2d 1037, 1038-39 (3d Cir. 1993); Matter of Packer Ave. Assocs., 884 F.2d 745,
747 (3d Cir. 1989). The Tilburys certainly had notice of the fact that the District Court
was considering the issuance of an injunction as well as the opportunity to respond.
Further, we agree with the District Court that this litigation must come to an end. The
Tilburys have burdened nearly every person even remotely connected to their underlying
suit, including several courts and numerous judges. We read the District Court’s order to
bar only the filing of pro se actions relating to this matter without first obtaining leave of
the court. All other actions simply require due notice to the court. The order further
provides sufficient safeguards to ensure that the Tilburys’ access to the courts is not
permanently and unnecessarily restricted. We embrace those safeguards, but we modify
the injunction to require representation by a licensed attorney. We will not require that
the attorney also be licensed to practice in the United States District Court for the District
of New Jersey. Accordingly, we hold that the District Court did not abuse its discretion.
For all of the foregoing reasons, we will affirm the judgment of the District Court.
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Appellees’ motion to file a supplemental appendix is granted as all of the documents
contained therein were filed as part of the record in the District Court. Appellants’
motion to strike appellees’ briefs and supplemental appendix is denied, as is their “motion
for order to have the Burlington County Superior Court, September 21, 2004 summary
judgment motion court hearing recording tested by a certified forensic electronics analyst
for tampering.” We will also deny appellants’ motion seeking the appointment of
counsel. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
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