Tucker v. Specialized Loan Servicing, LLCTucker v. Specialized Loan Servicing, LLC
MEMORANDUM OPINION
Plaintiffs Adrienne Tucker and Maurice Holmes are facing foreclosure on their home. They failed to make payments under their original mortgage loan after they began making payments under what they believed to be a valid loan modification agreement. They filed suit in the Circuit Court for Prince George’s County against their current loan servicer, Defendant Specialized Loan Servicing, LLC (“SLS”); their previous loan servicer, Defendant Saxon Mortgage Services, Inc. (“Saxon”); and the owner of their current mortgage loan, Defendant FV-I, Inc., in trust for Morgan Stanley Capital Holdings LLC (“FVI”). ECF No. 2. Plaintiffs seek declaratory relief and damages under various theories of liability, all based on their.assertion that Defendants proceeded as if the original terms of the loan, and not the purported modification agreement, controlled. See id.; Am. Compl., ECF No. 22. Defendants removed the ease to this Court, ECF No. 1, and have moved to dismiss for failure to state a claim. ECF Nos. 23 & 25. Also, Plaintiffs, having amended once in response to Defendants’ earlier motions to dismiss, now seek leave to file a second amended complaint, ECF No. 32. The parties have briefed these motions fully. See ECF Nos. 28-1, 25, 29-31, 33-37. Yet, prior to ruling on them, I must determine whether this Court has jurisdiction over any or all of Plaintiffs’ claims, given the pending foreclosure proceeding in state court.
1. BACKGROUND
Adrienne Tucker purchased 13901 Ed-sall Street, Upper Marlboro, Maryland
In response, Plaintiffs filed this action against Defendants SLS and Saxon, as well as FVI, in state court. Compl., ECF No. 2. Their Amended Complaint includes eight causes of action. Plaintiffs claim that Defendants SLS and FVI violated the Maryland Consumer Debt Collection Act, Md.Code Ann., Com. Law §§ 14-201 et seq. (“MCDCA”); the FDCPA; and the Maryland Consumer Protection Act, Md. Code Ann., Com. Law §§ 13-101 et seq. (“MCPA”). They allege that all Defendants violated the FCRA and are liable for defamation, injurious falsehood, and breach of contract. In addition, they seek declaratory relief as to all Defendants. Specifically, they request that the Court declare that the modification agreement “modified and supplanted” the original mortgage loan and that the original mortgage loan “is of no force or effect”; that GMAC “by its actions, conduct and/or silence waived any provision or requirement in the Modification Agreement that both Plaintiffs execute the agreement as a prerequisite to its being effective; that Defendants “have unclean hands” in reporting Plaintiffs “delinquent and/or in default in the payment of the Original Note” and in moving forward with foreclosure proceedings; that Defendants “have no rights, legal or otherwise, to foreclose on [Plaintiffs’] property based on any alleged delinquency or default under the terms of the Original Note”; and that Plaintiffs’ property is not subject to foreclosure sale. Id. at 32-33. They also seek an injunction to stop Defendants from reporting to credit reporting agencies that they are in default on their original loan, as well as an injunction to prevent Defendants from enforcing the original loan. Id. at 33.
Under the Anti-Injunction Act, 22 U.S.C. § 2283, this Court may not grant “an injunction to stay the proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. Significantly, “where the Anti-Injunction Act bars an injunction it ‘also bars the issuance of a declaratory judgment that would have the same effect as an injunction.’ ” Lovett v. Deutsche Bank Nat’l Trust Co., No. 12-1816-MBS-SVH,
Moreover, when a party seeks equitable relief concerning property that already is the res (the subject) of an ongo-
[It] is not restricted to eases where property has been actually seized under judicial process before a second suit is instituted, but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property.”
Princess Lida,
Here, the previously filed, ongoing foreclosure proceeding in Maryland state court is an in rem proceeding. See Jones v. HSBC Bank USA, N.A.,
III. THE YOUNGER ABSTENTION
This Court has federal question and diversity jurisdiction over Plaintiffs’ claims for damages, see 28 U.S.C. §§ 1331, 1332(a)(1); Notice of Removal ¶¶ 4-7, and “[t]he Supreme Court has repeatedly instructed that ‘federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.’ ” Martin v. Stewart,
Yet, “it has long been established that a federal court has the authority to decline to exercise its jurisdiction when it is asked to employ its historic powers as a court of equity,” and may exercise this authority in “all cases in which the court has discretion to grant or deny relief.” Quackenbush,
Abstention doctrines constitute “extraordinary and narrow exeeption[s]” to a federal court’s duty to exercise the jurisdiction conferred on it. Quackenbush,517 U.S. at 716, 728 ,116 S.Ct. 1712 (internal quotation marks omitted). These exceptions require the denial of discretionary relief when “principles of federalism and comity” outweigh the federal interest in deciding a case. See id. at 716, 728,116 S.Ct. 1712 . To cabin that discretion and ensure that abstention “remains the exception, not the rule,” the Supreme Court has “carefully defined ... the areas in which such abstention is permissible.” New Orleans Pub. Serv., Inc. v. Council of New Orleans,491 U.S. 350 , 359,109 S.Ct. 2506 ,105 L.Ed.2d 298 (1989) (NOPSI) (internal quotation marks omitted).
Federal circuit and district courts, including this Court, have relied upon the doctrine of abstention articulated in Younger v. Harris,
requires a federal court to abstain from interfering in state proceedings, even if jurisdiction exists, if there is: (1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit.
Laurel Sand & Gravel, Inc. v. Wilson,
However, the recent Supreme Court case Sprint Communications, Inc. v. Jacobs, — U.S. -,
On appeal, the Supreme Court sought to provide guidance on the limited scope of Younger. It stated that the three factors from Middlesex “were not dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger.” Id. at 593. The court reasoned:
Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. See Tr. of Oral Arg. 35-36. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229 , 236,104 S.Ct. 2321 ,81 L.Ed.2d 186 (1984) (quoting Colorado River [Water Conservation Dist. v. United States], 424 U.S. [800], at 813,96 S.Ct. 1236 [47 L.Ed.2d 483 (1976) ]).
Id.
The Supreme Court observed that it had “review[ed] and restatefd] [its] Younger jurisprudence in New Orleans Public Service, Inc. v. Council of City of New Orleans,
With regard to the scope of the third category, the Sprint Court noted that the NOPSI Court cited Juidice v. Vail,
A few district courts have considered the applicability of Younger in the foreclosure context post-Sprint. In Brumfiel v. U.S. Bank, N.A., No. 14-2453-WJM,
In Lech v. Third Federal Savings & Loan Association of Cleveland, No. 13-518,
Here, the ongoing state court proceeding certainly is neither a criminal proceeding nor akin to one; if anything, it mirrors contract litigation. Yet, as noted, Plaintiffs’ claim for declaratory relief is tantamount to a request for an injunction of the state court proceedings. See Samuels v. Mackell,
IV. STANDARDS OF REVIEW FOR PENDING MOTIONS
A. Motion to Amend
Whether to grant a motion for leave to amend is within this Court’s discretion. Foman v. Davis,
Prejudice occurs when the amendment necessitates additional discovery and analysis to address events that previously were not part of the case, as opposed to when the amendment involves events that the “defendant was from the outset made fully aware of,” such that “an allowance of the amendment could not in any way prejudice the preparation of defendant’s case.” Davis v. Piper Aircraft Corp.,
B. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relipf can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
A Rule 12(b)(6) motion “generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiffs claim is time-barred,” except under “the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint.” Goodman v. Praxair, Inc.,
A. Claims that the Parties Agree to Strike
In their Amended Complaint, Plaintiffs claim that Defendants SLS and FVI violated the FDCPA and that all Defendants violated the FCRA. Defendants SLS and FVI argue that they are exempt from liability under the FDCPA because they do not fall within the FDCPA definition of debt collectors. SLS/FVI Mem. 7-8. Additionally, all Defendants contend that Plaintiffs fail to state a claim for a violation of the FCRA. Id. at 13; Saxon Mem. 5-6. Plaintiffs do not oppose dismissal of their FDCPA claim, and they concede that they have not alleged sufficient facts to state a claim under the FCRA. Pis.’ Opp’n to SLS/ FVI Mot. 13; Pis.’ Opp’n to Saxon Mot. 2-3. Moreover, in their Second Amended Complaint, Plaintiffs eliminate these causes of action. Similarly, in response to Saxon’s argument that Plaintiffs’ breach of contract claim against it is untimely and fails to state a claim, Saxon Mot. 2, Plaintiffs “concede to dismiss the seventh cause of action for breach of contract, solely as to Defendant Saxon.” Pis.’ Opp’n to Saxon Mot. 12. Also, in their Second Amended Complaint, Plaintiffs assert this cause of action against SLS and FVI only.
Although Defendants oppose Plaintiffs’ Motion to Amend, ECF Nos. 34 & 35, I construe their Oppositions to apply to the counts for which Plaintiffs seek to augment their pleadings and not to the claims that Plaintiffs seek to delete, which Defendants do not address. See Fed.R.Civ.P. 1. Therefore, to the extent that Plaintiffs seek to strike their claims for violations of the FDCPA and the FCRA and their breach of contract claim as to Defendant Saxon, their Motion to Amend is granted as unopposed.
B. Amendment of Other Claims
In support of their motion, Plaintiffs argue that amendment would not be prejudicial because the Second Amended Complaint does not include any new causes of action, but rather eliminates two of the causes of action, and the new facts presented in the Second Amended Complaint “are based on the same operative events as pleaded in both the initial and first amended complaint.” Pis.’ Mem. 3. Further, they assert that they “promptly sought leave to amend” and “[a] scheduling order has not befen entered, discovery has not commenced, and a trial date has not been set.” Id. at 3-4. They contend that amendment would not be futile because their amended pleading is “sufficient to withstand a motion to dismiss.” Id. at 4.
Defendants oppose the motion, with SLS and FVI arguing that “Plaintiffs have already had two opportunities to plead actionable claims and Defendant should not bear the burden of Plaintiffs’ continued failure to do so.” SLS/FVI Opp’n 1. In their view, their previous motions to dismiss, ECF Nos. 11 & 13, “pointed out plainly” deficiencies in Plaintiffs’ complaint, such as “the lack of a valid loan modification and the limitations issues,” and “Plaintiffs’ failure to adequately plead their claims the first two times is not sufficient grounds for leave to amend yet again.” SLS/FVI Opp’n 2. Saxon similarly argues that Plaintiffs’ “pattern of trying to amend to cure defects pointed out by motions to dismiss” is prejudicial, and it contends that amendment would be futile because, even as amended, Plaintiffs fail to state any claim against Saxon. Saxon
Plaintiffs filed their original Complaint on February 18, 2014, their Amended Complaint as a matter of course on April 3, 2014, and the pending Motion for Leave to File Second Amended Complaint on May 21, 2014, just over three months after this lawsuit commenced, and less than two months after SLS and FVI filed their Motion to Dismiss Plaintiffs’ Amended Complaint. I have not ruled on the pending Motions to Dismiss or entered a scheduling order in this case, and consequently discovery has not begun. The proposed amendments eliminate two of Plaintiffs’ existing causes of action, clarify the remainder, and do not involve any events that Defendants were not cognizant of previously. Given these circumstances, “an allowance of the amendment could not in any way prejudice the preparation of defendant[s’] case.” See Davis,
The determinations of whether amendment would be futile and whether to grant Defendants’ Motions to Dismiss involve the same considerations regarding the sufficiency of Plaintiffs’ pleadings. See Katyle,
C. Futility and Dismissal
1. Validity of loan modification agreement
The crux of Defendants SLS and FVI’s Motion to Dismiss is that “[t]he document which the Plaintiffs hold out as a legally enforceable loan modification was expressly contingent on it being executed by both of the Plaintiffs,” but “[o]nly Plaintiff Tucker signed the document,” such that “there is no loan modification agreement,” and “Plaintiffs’ claims all fail, as they are wholly dependent on the purported modification....” SLS/FVI Mem. 1-2; see id. at 5-6. According to SLS and FVI, GMAC could have waived, in writing, the requirement that Mr. Holmes sign the modification agreement, but Plaintiffs do not allege as much in their Amended Complaint. Id. at 5. In their view, the Deed of Trust permitted Ms. Tucker to “agreed to modify the Subject Loan without the consent of Plaintiff Holmes,” thereby making “it possible for the Modification to be made effective without the signature of Plaintiff Holmes, if and only if GMAC waived the requirement that he sign,” but the Deed of Trust did not provide “a written waiver of the requirement that Plaintiff Holmes sign the modification.” Id. at 5-6. SLS and FVI insist that it is a matter of contract interpretation that the Court can determine at this stage. Defs.’ Reply 2.
Plaintiffs counter that this argument “is misplaced at this stage of the proceedings, because a Rule 12(b)(6) motion is not to be used to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” unless it is clear from the fact of the complaint that a meritorious affirmative defense exists. Pis.’ Opp’n to SLS/FVI Mot. 3. They characterize Defendants’ argument as “essentially an affirma
Plaintiffs insist that “GMAC Mortgage waived the right to contest the formation of the Modification Agreement based on its conduct and silence in acquiescing to the loan modification knowing that only one of the Plaintiffs had signed the agreement.” Id. at 5. And, in their Second Amended Complaint, Plaintiffs allege that “GMAC Mortgage did not require both Plaintiffs to execute the Modification Agreement prior to accepting payments from Plaintiffs” and that GMAC’s
conduct, actions silence, and inaction in not requiring both Plaintiffs to execute the Modification Agreement prior to accepting payments from Plaintiffs and its acceptance of payments without qualification or protest ... waived any condition that may have existed to the loan modification becoming effective, including but not limited to, any requirement that both Plaintiffs execute the Modification Agreement as a precondition to its being effective.
Second Am. Compl. ¶ 30.
Accepting Plaintiffs’ Second Amended Complaint as true, Plaintiffs entered into an agreement that allowed for future modifications of their mortgage loan.without Mr. Holmes’s consent, and then Ms. Tucker, but not Mr. Holmes, signed a loan modification agreement that expressly required Mr. Holmes’s signature. Yet, the lender signed and returned the modification agreement to them and then proceeded to accept payments under the modification agreement. Given that “a party may waive, by its actions or statements, a condition precedent in a contract, even when that contract has a non-waiver clause,” Hovnanian,
2. Plaintiffs’ claims that all Defendants are liable for defamation and injurious falsehood
Defamation and injurious falsehood claims have a one-year statute of limitations in Maryland. Md.Code Ann., Cts. & Jud. Proc. § 5-105 (stating limitations period for assault, libel and slander actions); see Springer v. Erie Ins. Exchange,
But, in the Second Amended Complaint, Plaintiffs allege that, “[bjased on information received from Saxon and SLS, credit reporting agencies published that Plaintiffs were delinquent and/or in default in the repayment of the Original Note,” and the agencies did so “monthly during, the period February 2013 through February 2014.” Second Am. Compl. ¶ 43. They also claim that “[i]n or about August 2012 and thereafter again in January 2013, Plaintiffs individually and jointly applied for loans and extensions of credit,” which were denied. Id. ¶ 44. Significantly, they allege that, as a result, they “reviewed their credit reports in or about February 2013 and then again in August 2013” and “discovered at that time that it was being published on their respective credit reports that they were delinquent and/or in default in the repayment of the Original Note.” Id. ¶ 45. Thus, it appears that they were denied credit in August 2012, before the alleged false reporting began, but did not suspect that something was amiss until after they were denied credit for a second time in January 2013, after which they promptly reviewed their credit reports within a month of the denial. On these facts, these causes of action accrued in February 2013, when Plaintiffs reviewed their credit report and knew and reasonably should have known of the alleged false reporting. See King,
Saxon insists that the defamation and injurious falsehood claims both are preempted by the FCRA and that Plaintiffs did not allege malice sufficiently to avoid preemption. Saxon Mem. 6-8. The FCRA preempts consumer defamation claims “with respect to the reporting of information” that otherwise could be brought against “any person who furnishes information to a consumer reporting agency.” 15 U.S.C. § 1681h(e). Yet, it carves out an exception for consumer defamation claims regarding “false information furnished with malice or willful intent to in
Plaintiffs do not argue against FCRA preemption, but rather contend that they “have pleaded malice sufficiently to avoid FCRA preemption.” Pis.’ Opp’n to Saxon Mot. 3. A plaintiff pleads malice sufficiently “ ‘to overcome the preemptive effect ... of the FCRA’ ” when he or she alleges that a defendant “acted with reckless disregard for the truth or falsity of the information it was reporting,” by alleging that the defendant “acted with a high degree of awareness of probable falsity or had serious doubts as to its veracity,” not just “ ‘a lack of certainty.’ ” Alston,
In Alston, Judge Chasanow dismissed the plaintiffs defamation claim because the operative complaint did not contain any “factual support for Plaintiffs conclusory averment that ‘[the defendant] intentionally and maliciously instructed the credit bureaus to report publicly that Plaintiff had a collection account’ when it knew the reporting was false,” and the pleading did not give any “indication that UCB knew the information it was allegedly reporting regarding Plaintiffs debt was false.” Id. Here, Plaintiffs make similar conclusory allegations that “Saxon and SLS have reported knowingly false information to credit reporting agencies.” Second Am. Compl. ¶ 79; see id. ¶ 93 (same). But, unlike in Alston, Plaintiffs then provide a strong basis for reasonably inferring that Defendant “acted with a high degree of awareness of probable falsity” of the credit information they were reporting. See Alston,
3. Plaintiffs’ claim that SLS and FVI are liable for breach of contract
It is undisputed that Maryland’s three-year statute of limitations applies to
31. In or about June 2010, Plaintiffs were advised by GMAC Mortgage that the mortgage loan account had been assigned to Saxon for servicing.
32. Based on the notice received from GMAC Mortgage, Plaintiffs thereafter attempted to make the loan payments as required by the Modification Agreement to Saxon. However, Saxon would not acknowledge the loan modification and would not accept payments based on the Modification Agreement. ...
33. On July 10, 2010 and then again on July 20, 2010, Mr. Holmes contacted representatives of Saxon to ascertain the status of the loan account. He was advised that Saxon would not accept payments in the amount provided in the Modification Agreement and demanded that payment be made pursuant to the terms of the Original Note.
Second Am. Compl. ¶¶ 31-33.
Plaintiffs counter that the July 2010 date applies to Saxon, not to SLS and FVI.
Under Maryland law, “a cause of action for breach of contract generally accrues when the contract is breached,” but “may be extended ... by the ‘discovery rule,’ which provides that the limitations period does not begin until the plaintiff learned or should have learned of the breach.” Goodman v. Praxair, Inc.,
Alternatively, SLS and FVT contend that Plaintiffs fail to state a claim for breach of contract by failing to allege compensable damages. SLS/FVI Mem. 18. The elements of a claim for breach of contract include “contractual obligation, breach, and damages.” Kumar v. Dhanda,
Defendants oppose Plaintiffs’ Motion to Amend on the ground that Plaintiffs already have amended their complaint and have not discovered any new evidence to justify another amendment, when Plaintiffs could have presented the facts originally as they now present them in the Second Amended Complaint. SLS/FVI Opp’n to Mot. to Am. 3. They do not address the merits of any of the amended claims, and they ask that, if the Court grants the Motion to Amend, the Court “consider [SLS and FVI’s] pending motion to dismiss ... in light of the proposed amendments and rule on same.” Id. Consequently, Defendants have not argued that Plaintiffs’ breach of contract claim, as amended, fails to allege damages sufficiently. Moreover, “damages which a plaintiff may recover for breach of contract include ... [consequential damages, which are] those which may reasonably be supposed to have been in the contemplation of both parties at the time of making of the contract....” Addressograph-Multigraph Corp. v. Zink,
VI. CONCLUSION
In sum, Defendants’ Motions to Dismiss, ECF Nos. 23 & 25, ARE GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ Motion to Amend, ECF No. 32, IS GRANTED IN PART AND DENIED IN PART. Specifically,
1. Defendants’ Motions to Dismiss ARE GRANTED as to Plaintiffs’ declaratory judgment action, and Plaintiffs’ Motion to Amend IS DENIED as to that claim.
2. To the extent that Plaintiffs seek to strike their claims for violations of the FDCPA and the FCRA and their breach of contract claim as to Defendant Saxon, their Motion to Amend IS GRANTED as unopposed. Defendants’ Motions to Dismiss ARE DENIED as moot as to these claims.
3. SLS and FVI’s Motion to Dismiss IS DENIED as to Plaintiffs’ claims that SLS and FVI violated the MCDCA and MCPA and Plaintiffs’ breach of contract claim against SLS and FVI. Plaintiffs’ Motion to Amend IS GRANTED as to these claims.
4. Defendants’ Motions to Dismiss ARE DENIED as to Plaintiffs’ defamation and injurious falsehood claims. Plaintiffs’ Motion to Amend IS GRANTED as to these claims.
5. Plaintiffs’ proposed Second Amended Complaint, ECF No. 32-2, IS ACCEPTED as the operative complaint in this case. The declaratory judgment action SHALL BE STRUCK, consistent with this Memorandum Opinion. The remaining claims against SLS and FVI only are for violations of the MCDCA and MCPA and for breach of contract. The remaining claims against all defendants are for defamation and injurious falsehood.
A separate order follows.
ORDER
For the reasons stated in the Memorandum Opinion issued this same date, it is, this 3rd day of February, 2015, hereby ORDERED that the Motions to Dismiss that Defendants Specialized Loan Servicing, LLC (“SLS”); Saxon Mortgage Services, Inc. (“Saxon”); and FV-I, Inc., in trust for Morgan Stanley Capital Holdings LLC (“FVI”), filed, ECF Nos. 23 & 25, ARE GRANTED IN PART AND DENIED IN PART, and Plaintiffs Adrienne Tucker and Maurice Holmes’s Motion to Amend, ECF No. 32, IS GRANTED IN PART AND DENIED IN PART. Specifically,
1. Defendants’ Motions to Dismiss ARE GRANTED as to Plaintiffs’ declaratory judgment action, and Plaintiffs’ Motion to Amend IS DENIED as to that claim.
2. To the extent that Plaintiffs seek to strike their claims for violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq., and and their breach of contract claim as to Defendant Saxon, their Motion to Amend IS GRANTED as unopposed. Defendants’ Motions to Dismiss ARE DENIED as moot as to these claims.
4. Defendants’ Motions to Dismiss ARE DENIED as to Plaintiffs’ defamation and injurious falsehood claims. Plaintiffs’ Motion to Amend IS GRANTED as to these claims.
5. Plaintiffs’ proposed Second Amended Complaint, ECF No. 32-2, IS ACCEPTED as the operative complaint in this case. The declaratory judgment action IS DISMISSED and SHALL BE STRUCK. The remaining claims against SLS and FVI only are for violations of the MCDCA and MCPA and for breach of contract. The remaining claims against all Defendants are for defamation and injurious falsehood.
Notes
. The Maryland Judiciary Case Search website, the contents of which I judicially notice, Fed.R.Evid. 201, 803(8)(a)(i), 901(b)(5), establishes that the foreclosure action with regard to the Plaintiffs' Property still is pending in the Circuit Court for Prince George's County.
. For purposes of considering Defendants' Motions to Dismiss, I accept as true the facts that Plaintiffs alleged in the Amended Complaint, which is the operative complaint, as well as in their proposed Second Amended Complaint, ECF No. 32-2, as I am simultaneously considering the merits of Plaintiffs'
. Plaintiffs originally named GMAC as a Defendant but voluntarily dismissed their claims against GMAC and amended their complaint
. Because the Anti-Injunction Act, 28 U.S.C. § 2283, “deprives the court of subject matter jurisdiction,” Kinard. v. Kinard, No. 98-2511-24,
. In contrast, in an in personam action for money damages or
for an injunction compelling or restraining action by the defendant, both a state court and a federal court having concurrent jurisdiction may proceed with the litigation, at least until judgment is obtained in one court which may be set up as res adjudicata in the other.
Penn Gen. Cas. Co.,
. District courts may raise the issue of abstention sua sponte. See D.A. Osguthorpe Family P’ship v. ASC Utah, Inc.,
. Because I do not need to consider any documents outside this scope to rule on Defendant’s motion, in which Wells Fargo seeks dismissal or, in the alternative, summary judgment, I will treat the motion as one to dismiss. See Fed.R.Civ.P. 1; CACI Int’l,
. Although this amendment leaves this Court without federal question jurisdiction, the Court still has diversity jurisdiction under 28 U.S.C. §§ 1332(a)(1).
. Plaintiffs claim that FVI "is ... liable for the acts of SLS, whose actions described [in the Second Amended Complaint] were on behalf of FV-I and/or completely within its delegated authority." Second Am. Compl. ¶¶ 122.