United States District Court, E.D. Michigan, Southern Division
session of said Court, held in the U.S. Courthouse, Detroit,
Michigan on January 6, 2017
PRESENT: Honorable Gerald E. Rosen United States District
ORDER OF SUMMARY DISMISSAL
E. Rosen United States District Judge.
Brett Mohlman filed this pro se action complaining
that Defendant Deutsche Bank wrongfully foreclosed on his
Livonia, Michigan property. Within a week of filing his
Complaint, Mohlman filed a Motion requesting that the Court
grant him injunctive relief and enjoin Defendant from
evicting him from the property “for the reasons set
forth in his complaint.” [Dkt. # 3.] Plaintiff has been
granted permission to proceed in forma pauperis,
without prepayment of the filing fee under 28 U.S.C. §
1915. After careful consideration, the Court dismisses
Plaintiff's complaint pursuant to 28 U.S.C. §
1915(e)(2) and denies Plaintiff's Motion for Injunctive
Relief as moot.
filed in forma pauperis are subject to the screening
requirements of 28 U.S.C. § 1915(e)(2). Brown v.
Burgery, 207 F.3d 863, 866 (6th Cir. 2000). Section
1915(e)(2) requires district courts to screen and to dismiss
complaints that are frivolous, fail to state a claim upon
which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief.
the fourth action Plaintiff Mohlman has brought complaining
about the validity of the foreclosure of his property. In
December 2011, Plaintiff filed a complaint in state court
which was subsequently removed by the defendants -- Deutsche
Bank's predecessor-in-interest, JP Morgan Chase Bank, and
Chase's vice-president, Craig J. Keaney -- to this Court
and assigned Case No. 12-10120 (“Mohlman
I”). Plaintiff's various counts in that action
revolved around assertions that due to the defendants'
actions, his mortgage was incorrectly placed in default and
that the defendants' actions were otherwise fraudulent.
As relief Plaintiff asked the Court to extinguish any
interests the defendants may hold in the subject property,
return the property to him and award him damages for
“defending the fraudulent action.” The Court
granted the defendants' motion to dismiss Plaintiff's
complaint and dismissed Plaintiff's suit for failure to
state any plausible claim upon which relief could be granted.
See Mohlman v. Long Beach Mortgage, et al., 2013 WL
490112 (E.D. Mich. Feb. 8, 2013). The Sixth Circuit affirmed
this ruling in an unpublished order dated December 27, 2013.
See Mohlman v. JP Morgan Chase Bank, N.A., et al,
Sixth Circuit No. 13-1291.
in February 2015, Plaintiff filed another pro se
complaint, this time naming Deutsche Bank,
successor-in-interest to JP Morgan Chase Bank, as defendant
and seeking relief from the then impending sheriff's sale
of the Livonia property in light of various alleged defects
in the foreclosure process leading up to the sale. Deutsche
Bank removed the suit to federal court, and it was assigned
to this Court as Case No. 15-11085 (“Mohlman
II”). On the Report and Recommendation of U.S.
Magistrate Judge Elizabeth A. Stafford, the Court granted the
defendants' motion to dismiss, and dismissed Mohlman
II on res judicata grounds.
the Report and Recommendation was pending in Mohlman
II, Plaintiff filed yet a third pro se
complaint in October of 2015. See Mohlman v. Deutsche
Bank National Trust Company, et al, No. 15-13489
(“Mohlman III”). That case was assigned
to this Court as a companion case to Mohlman II.
After giving Plaintiff an opportunity to show cause why the
case should not be dismissed, on August 1, 2016, the Court
dismissed Mohlman III on res judicata
(“claim preclusion”) grounds. See Mohlman v.
Deutsche Bank National Trust Company, 2016 WL 4073555
(E.D. Mich. Aug. 1, 2016).
by previous rulings, Plaintiff filed this pro se
action again complaining that his Livonia, Michigan property
was wrongfully foreclosed by Defendant Deutsche Bank. Though,
as he has done in his various previous complaints, Plaintiff
asserts new “theories” of recovery, there is no
denying that these theories involve the same subject matter
-- the foreclosure of his Livonia, Michigan property --and
the same underlying transactions that gave rise to the
Court explained in dismissing Mohlman II and stated,
again, in its dismissal of Mohlman III, “the
doctrine of res judicata, or claim preclusion,
encompasses both claims actually asserted in an earlier suit
and those that could have been litigated in the prior
action.” Mohlman II, 3/3/16 Opinion and Order,
Dkt. No. 34, p. 8 (citing Rawe v. Liberty Mutual Fire
Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006)); see
also Mohlman III, 8/1/16 Order and Judgment of
Dismissal, 2016 WL 4073555 at *2 (“[T]he law is clear
that claim preclusion cannot be avoided through the assertion
of ‘alternative theories of recovery' or a request
for ‘a different remedy', so long as these
‘other theories could have been asserted and [other]
remedies could have been sought in the earlier
action.'” (citing Rawe, 462 F.3d at 529)).
newest action is subject to the same ruling: the new theories
of recovery Plaintiff advances here could readily have been
pursued in Plaintiff's previous actions.
four elements of res judicata, or claim preclusion,
are present here: (1) a final decision on the merits by a
court of competent jurisdiction was entered in the previous
action; (2) the present action is between the same parties or
their privies; (3) the issues in the present action were
litigated or should have been litigated in the prior action;
and (4) as the present and previous actions arise out of the
same transaction or series of transaction, there is an
identity of the causes of action. See Browning v.
Levy, 283 F.3d 761, 772-74 (6th Cir. 2002).
Plaintiff's present Complaint, therefore is barred by the
doctrine of res judicata.
complaint is barred by res judicata, it lacks an
arguable basis either in law or in fact. Taylor v.
Reynolds, 22 F. App'x 537, 539 (6th Cir. 2001).
Accordingly, res judicata is cause for dismissal
based on failure to state a claim pursuant to 28 U.S.C.
§ 1915(e). See Murray v. Reed, 69 F. App'x
246, 247 (6th Cir.2003) (affirming district court's
dismissal of ifp complaint based on frivolousness
and failure to state a claim under the principle of res
judicata); Skudnov v. Housing Auth. of Bowling
Green, 2007 WL 2915179, at *3 (W.D. Ky. Oct. 5, 2007)
(“In the present action, Plaintiff is simply trying to
re-litigate claims that he lost as part of his 2005 action.
As such, this action is barred by the doctrine of res
judicata, and therefore, must be dismissed as legally
frivolous and for failure to state a claim upon which relief
may be granted.”)
of the foregoing reasons, the Court concludes that Plaintiff
has failed to state a claim upon which relief can be granted.
Therefore, IT IS HEREBY ORDERED that Plaintiff's
Complaint is hereby DISMISSED, pursuant to 28 U.S.C. §
1915(e)(2). Accordingly, IT IS FURTHER ORDERED ...