The Dorman Phenomenon: LIT’s Founder as Intervenor Seeks to Replace AWOL Plaintiff

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00024-P-BJ

Texas federal district court asks parties to chart next steps in case challenging CFPB credit card late fee rule

By Alan S. Kaplinsky on May 14, 2024

Yesterday, the Texas federal district court hearing the industry lawsuit challenging the CFPB’s final credit card late fee rule (Rule) issued the following unusual order:

“On March 10, 2024, this Court granted Plaintiffs’ Motion for Preliminary Injunction.  The Court therefore has questions concerning the live causes of actions in this case and what next steps are appropriate to move the case along.

The Court, accordingly, ORDERS both Parties to brief the Court on what the live pleadings are in this case and the current posture of such pleadings.  Briefing should be filed by 5:00 p.m. on Wednesday, May 15, 2024.”

(The order mistakenly refers to March 10 rather than May 10 as the date on which the court granted the plaintiffs’ motion for preliminary injunction staying the Rule which was set to become today.)

As an initial matter, it is unclear whether Judge Pittman has authority to take any further steps in the case without direction from the Fifth Circuit.

The Fifth Circuit’s order remanding the case to the district court to allow the district court to rule on the plaintiffs’ preliminary injunction motion stated as follows:

“Accordingly, we VACATE the district court’s effective denial of the motion for preliminary injunction and REMAND with instructions that the district court rule on the Chamber’s motion for preliminary injunction by May 10, 2024.  This is a limited remand.  Our panel retains jurisdiction over this appeal.”

Assuming Judge Pittman has authority to “move the case along,” it seems likely that the parties will agree that any next steps should await the U.S. Supreme Court decision in CFSA V. CFPB which is expected to be issued by the end of next month.

Based on our review of the docket, it appears that the only remaining “live pleading” is the complaint.

If the Supreme Court holds that the CFPB is constitutionally funded, the court will need to consider the merits of the plaintiffs’ claims based on the CARD Act, TILA, and APA.

Since the district court granted the preliminary injunction motion based only on the plaintiffs’ constitutional claim, the plaintiffs will likely file a pleading in which they argue that the preliminary injunction should remain in place because they have established a likelihood of success on the merits of their other claims.

The court will then have to decide the merits of the complaint, either on a motion to dismiss filed by the CFPB or, after the CFPB files an answer to the complaint, on cross-motions for judgment on the pleadings or summary judgment.

(On April 29, the district court entered an order extending the date for the CFPB to answer or otherwise respond to the complaint to May 28, 2024.)

If the Supreme Court holds that the CFPB is unconstitutionally funded and all regulations promulgated by the CFPB are invalid, the preliminary injunction will remain in place without the need for further consideration by the district court.

However, the district court will still need to finally resolve the complaint, which could be accomplished through a ruling on a motion by the plaintiffs for judgment on the pleadings or summary judgment.

Alternatively, the Supreme Court could hold that the CFPB is unconstitutionally funded and all regulations promulgated by the CFPB are invalid but grant a stay of its order to allow Congress to ratify some or all CFPB regulations or take some other action that allows some or all of the regulations to survive.

Should that happen, the preliminary injunction would also remain in place but it seems likely that the district court would stay any further proceedings in the case until Congress acts.

Texas federal district court enters preliminary injunction staying CFPB final credit card late fee rule

By John L. Culhane, Jr., Ronald K. Vaske, Kristen E. Larson & Alan S. Kaplinsky on May 13, 2024

Last Friday, May 10, the Texas federal district court hearing the lawsuit challenging the CFPB’s final credit card late fee rule (Rule) granted the plaintiffs’ preliminary injunction motion and stayed the Rule.

The Rule was set to become effective tomorrow, May 14.

The district court’s ruling followed the entry of an order by the Fifth Circuit vacating the district court’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion and remanding the case to the district court with instructions to rule on the plaintiffs’ preliminary injunction motion by May 10.

In issuing the preliminary injunction, Judge Pittman found that that plaintiffs’ had established a likelihood of success on the merits based on the Fifth Circuit’s decision in CFSA v. CFPB which held that the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution.

LIT: Despite his diminutive stature, Judge Pittman couldn’t find the US Constitution if it was lyin’ on the ground beside his feet.

Judge Pittman found it was unnecessary for him to address the plaintiffs’ other arguments that the Rule violates the Truth in Lending Act, the CARD Act, and the Administrative Procedure Act.  However, he did comment that the plaintiffs’ other arguments are “compelling.”

The Fifth Circuit’s decision in CFSA v. CFPB is currently before the U.S. Supreme Court.

The Supreme Court heard oral argument in the case on October 3, 2023 and is expected to issue its ruling by the end of next month.

Many observers believe that the Supreme Court will rule that the CFPB’s funding mechanism does not violate the Appropriations Clause and will reverse the Fifth Circuit’s decision.

Should the Supreme Court reverse the Fifth Circuit (or affirm but not make its decision retroactive), we expect the plaintiffs to ask the district court to address the merits of its alternative arguments for invalidating the Rule.

Judge Pittman’s comment that  these arguments are “compelling” suggests that he will find that the plaintiffs’ have established a likelihood of success on the merits based on one or more of their alternative arguments and he will keep the preliminary injunction in place.

It is worth noting that Judge Pittman devoted a substantial portion of his opinion to expressing his displeasure with the Fifth Circuit.

After Judge Pittman entered orders denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion and transferring the case to the U.S. District Court for the District of Columbia, the Fifth Circuit vacated the transfer order and issued a writ of mandamus directing the district court “to reopen the case and give notice to D.D.C. that its transfer was without jurisdiction and should be disregarded.”

In that ruling, the Fifth Circuit stated that the district court “did not act promptly with regard to the [plaintiffs’] motion for a preliminary injunction.”

The Fifth Circuit subsequently vacated Judge Pittman’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion and ordered him to rule on the preliminary injunction motion by May 10.

In his opinion, Judge Pittman stated that “[t]he Court must respectfully disagree with its appellate court colleagues that it did not act ‘promptly’ or was otherwise dilatory or sluggish in its resolution of the preliminary injunction.”

He defended his decision to transfer the case before holding a hearing on the plaintiffs’ preliminary injunction motion and stated that “[t]he Court welcomes further guidance from the Court of Appeals as to whether a district court must first rule on the injunction motion before it can transfer a case.”

Judge Pittman also stated that the Fifth Circuit’s order directing him to issue a ruling by May 10 “seems to be a usurpation of the Court’s docket-management authority.”

He concluded the opinion by stating:

The Court accepts the ruling of [the] Fifth Circuit in this case without passion or prejudice and will apply its guidance to the utmost of its ability. 

However, this Court would be remiss if it did not point out the potential landmines the court’s ruling could pose for a trial judge’s day-to-day docket-management discretion, especially in a busy division. 

Parties should not be allowed to manipulate the court system to order trial judges ‘how,’ ‘what,’ and ‘when’ to rule.

Although it may be premature to declare the Rule dead, it is clearly on life support. 

Despite Judge Pittman’s displeasure with the Fifth Circuit and the plaintiffs, it seems highly likely that he would continue the preliminary injunction and eventually grant summary judgment in favor of the plaintiffs and against the CFPB on one or more of the alternative grounds if the Supreme Court holds that the CFPB is constitutionally funded.

Based on the Fifth Circuit’s obvious desire to keep this case within the Fifth Circuit and the Fifth Circuit’s very conservative nature, we would expect the Fifth Circuit to to affirm.

Since there does not now appear to be any issue in the case that would merit Supreme Court review, the Fifth Circuit should have the final say.

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00024-P-BJ

Date Filed	#	Docket Text
04/17/2024	27	ELECTRONIC ORDER granting 26 Plaintiff’s Motion to Extend Time and for Clarification. Plaintiff’s Amended Complaint that meets the requirements clearly set forth in Judge Pittman’s January 10, 2024 Order 5 is due no later than May 1, 2024. (Ordered by Magistrate Judge Jeffrey L. Cureton on 4/17/2024) (chmb) (Entered: 04/17/2024)
04/26/2024	28	Proposed Intervenor Mark Stephen Burke’s Motion ToReconsider Premature And Erroneous Magistrate Judge 24 OrderDenying Intervention filed by Mark Stephen Burke (saw) (Entered: 04/26/2024)

Magistrate Judge’s Premature Dismissal of Motion to Intervene

Proposed Intervenor, Mark Stephen Burke (“Mark”), hereby timely responds by US Mail to the premature electronic order by the Magistrate Judge, denying Mark’s intervention in a curt statement[1] relying upon Defendants objections, and prior to the court receiving and/or considering Mark’s reply, which was dated Apr. 8 and posted by US Priority Mail and docketed on Apr. 11, 2024.

Mark incorporates the reply when addressing the premature dismissal herein, and requests the court take judicial notice of its own docket.

Prior to presenting legal arguments it is prudent to note the subsequent movements on the docket which affect this motion.

This court provided gratuitous time for Plaintiff to submit a very late amended complaint, extending the deadline to Monday, April 15, 2024.

Despite this extension, the Plaintiff failed to comply with the court’s order, instead submitting a motion to the court without conferring with the parties labeled “Plaintiff’s Motion to Extend Time and for Clarification.”

Despite this non-compliance with the fortuitous extension, the court granted yet another extension, allowing Plaintiff until May 1, 2024 to file their Amended Complaint.[2]

Legal Authority and the Law of the Circuit

In light of this new deadline, this still leaves open whether or not Plaintiff will timely file its controlling pleading or provide yet another excuse by or on May 1.

As such, Mark respectfully re-urges the court to both reconsider its premature Order which did not consider Mark’s reply which pre-dated the Court’s dismissal and as such should have been considered, and further allow Mark to brief his responses according to whether or not Plaintiff maintains an interest in these proceedings.

In support, Mark refers to binding Fifth Circuit legal authority, and which post-dates this court’s order;

Okla. Firefighters Pension & Ret. Sys. v. Six Flags Entm’t Corp., No. 23-10696, at *10 (5th Cir. Apr. 18, 2024):-

“We have held “[w]hen a separate and independent jurisdictional basis exists a federal court has the discretion to treat an intervention as a separate action, and may adjudicate it despite dismissal of the main demand if failure to do so might result in unnecessary delay or other prejudice.”

Arkoma Assocs. v. Carden, 904 F.2d 5, 7 (5th Cir. 1990) (per curiam);

see also Harris v. Amoco Prod. Co., 768 F.2d 669, 676 (5th Cir. 1985)

(“The law of this circuit is that there are circumstances in which an intervenor can continue to litigate after dismissal of the party that originated the action.”).

The Proposed Intervenor Has the Power to Intervene

“Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.”

The Constitution begins:

“We the People of the United States.”

The Gettysburg Address (almost) ends:

“[G]overnment of the people, by the people, for the people.”

If there is a single idea that made our Nation (and that our Nation commended to the world), it is this one:

The people are sovereign.

The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people.”

4 Annals of Cong. 934 (1794). – Rucho v. Common Cause, 139 S. Ct. 2484, 2511 (2019).

This court has a duty to the people, and to Mark, as recently restated by Justice Alito;

“The judiciary, no less than the other branches of State and Federal Government, must respect people’s fundamental rights, and among these are the right… to the equal protection of the laws.”

Mo. Dep’t of Corr. v. Finney, No. 23-203, at *3 (Feb. 20, 2024).

See also; Adams v. City of Harahan, No. 22-30218, at *7-8 (5th Cir. Feb. 16, 2024)

(Discussing the Fourteenth Amendment, Due Process, and the broad application of “Liberty” as it relates to the deprivations highlighted in these proceedings related to Mark’s proposed intervention).

Clearly, Mark’s motion meets the constitutional standards which have been denied him, and that demands this court reconsider his intervention, either by intervention as a right or permissively, based upon his fundamental individual rights and claims, his status as a legal blogger (journalist) rights and claims, and that he be afforded equal protection of the laws.

Procedural Fairness Has Not Been Adopted Here

“”Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty.”

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 224, 73 S.Ct. 625, 635 (1953) (Jackson, J., joined by Frankfurter, J., dissenting).”

– Career Colleges & Schs. of Tex. v. United States Dep’t of Educ., No. 23-50491, at *48 (5th Cir. Apr. 4, 2024).

Without a memorandum, the Magistrate Judge dismissed the case relying upon the Defendant’s arguments and legal authority. Mark has already discussed the proceedings pre and post Order, indicating procedural unfairness.

In support, he provides more precedents.

For example, Defendants urged that Mark’s motion was untimely, and which by its Order, the court agrees.

This is contrary to Fifth Circuit precedent and erroneous;

Field v. Anadarko Petroleum Corp., 35 F.4th 1013, 1017-18 (5th Cir. 2022).

Here, Mark sought to intervene as soon as he became aware he had an interest in this case, as admitted[3] by Defendants.

In another example, the Order erroneously dismissed Mark’s rights to intervene permissively for the reasons provided in;

United States ex rel. Hernandez v. Team Fin., 80 F.4th 571, 577 (5th Cir. 2023).

There’s also the alarming claims by Defendants which Mark responded to in his reply, including one outrageous claim where

“Defendants assert “Plaintiff and Movant (Mark) are similarly involved in foreclosure litigation based on underlying contracts with Defendants.”.

Mark has no contract with Defendants.”.

Yet, without stating the word specifically, it appears the court has applied “privity” to the relationship between Mark and Joanna Burke by relying upon Defendants response and legal authorities.

However, that is  legal err.

Critically, it infringes upon Mark’s own constitutional and due process rights, including the right to act and be heard independently;

Chase National Bank v. Norwalk, 291 U.S. 431, 436-37, 441 (1934);

Hassell v. Bird, 5 Cal.5th 522, 548 (Cal. 2018).

Conclusion

“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

– Marbury v. Madison, 1803

Based on the facts presented and responses and replies received, Proposed Intervenor, Mark Stephen Burke—as both an individual and a recognized publisher of legal cases and matters of public concern—respectfully requests the Magistrate Judge reconsider his Order, allow for the May 1, 2024 deadline to be reached and then provide a new briefing schedule pertaining to Mark’s Motion to Intervene over objection(s).

In the alternative, treat this motion as a timely motion for reconsideration, grant an extension of 30 days for Mark Burke (allowing time to find out the status of the case on May 1, 2024) and to respond to the court’s denial, seeking de novo review by Article III US District Judge Mark T. Pittman, and which will include argument as to whether the denial of intervention was non-dispositive as claimed, or dispositive, as found in JP Morgan Chase Bank, N.A. v. Chiappetta, No. 1:07CV0683 (N.D. Ohio May 6, 2011, Doc. 222)

(The Court concludes that the denial of a motion to intervene is functionally equivalent to several of the listed motions in 28 U.S.C. § 636(b)(1)(A), and a motion to intervene is dispositive as to pro se applicant McGrath).

RESPECTFULLY submitted this day, 21st of April, 2024

[1] ELECTRONIC ORDER denying 13 Mark Stephen Burke’s Motion to Intervene as Plaintiff and Memorandum of Law in Support for the reasons stated in Defendants’ response.

See also Burke v. Ocwen Loan Serv., LLC, No. 4:21-CV-2591, 2022 WL 4597975, at *1 (S.D. Tex. Aug. 29, 2022).

[2] ELECTRONIC ORDER granting 26 Plaintiff’s Motion to Extend Time and for Clarification.

Plaintiff’s Amended Complaint that meets the requirements clearly set forth in Judge Pittman’s January 10, 2024 Order 5 is due no later than May 1, 2024.

[3] “Movant did not seek to intervene until more than two months into the lawsuit—and only when Movant’s Property was again scheduled to be sold at a foreclosure auction on March 5, 2024.

(See Motion at p. 4).”

Before JONES, WIENER and GRAVES,

Circuit Judges. EDITH H. JONES, Circuit Judge:*

Wells Fargo Bank (“Wells Fargo” or “the bank”) has been attempting to foreclose on this fraudulently procured home equity loan for nearly a decade.

When the bank finally obtained a judgment from the bankruptcy court purporting to “lift the automatic stay” concerning debtor Eric Erickson’s homestead, Erickson did not file a timely notice of appeal.

His attorney, however, obtained an extension of time to appeal to the district court based on excusable neglect. Fed. R. Bankr. P. 9006(b)(1).

Wells Fargo did not persuade the district court to dismiss the appeal, but the court ruled in the bank’s favor, authorizing judicial foreclosure of the lien while remanding Wells Fargo’s claim for attorneys’ fees back to the district court.1

Erickson has appealed on the merits, while Wells Fargo seeks closure by defending the judgment even as it challenges the jurisdiction of the bankruptcy court to extend time for an appeal and the timeliness of the appeal from the district court to this court.

Finding no error or lack of jurisdiction under the peculiar procedural occurrences here, we AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 The partial remand does not interfere with the finality of the district court’s judgment for our purposes. In re Pratt, 524 F.3d 580, 585 (5th Cir. 2008).

1.     Extension of Time to Appeal from the Bankruptcy Court Judgment

When appealing the judgment of a bankruptcy court, notice of appeal must be filed within fourteen days of the judgment being entered.

Fed. R. Bankr. P. 8002(a).

A bankruptcy court may permit notice of appeal to be filed after the fourteen days have passed if the appellant’s failure to file on time “was the result of excusable neglect,”

Fed. R. Bankr. P. 9006(b)(1), unless the judgment being appealed grants relief from an automatic stay, in which case the bankruptcy court may not extend the time for filing.

Fed. R. Bankr. P. 8002(c)(1)(A).

Relying on the “relief from an automatic stay” exception to Rule 9006, Wells Fargo contends that the bankruptcy court abused its discretion in allowing Erickson to file his notice of appeal two months after the bankruptcy court issued its judgment because the judgment declared, inter alia, that the automatic stay triggered by Erickson’s filing for bankruptcy was lifted.

Although we agree with the district court’s conclusion that the bankruptcy court did not abuse its discretion in extending the time for Erickson to file his notice of appeal, we do so for reasons other than those relied upon by the district court.

Shortly after filing for Chapter 7 bankruptcy, Erickson submitted a schedule of exempt property, claiming property located in Westlake Hills in Austin, Texas, to be exempt under the Texas homestead exemption laws.

Erickson had used the Westlake Hills property to secure a $931,000.00 home equity loan for which Wells Fargo held the note.

Wells Fargo did not object to the property’s inclusion in the schedule.

Consequently, the bankruptcy court lost jurisdiction over the Westlake Hills property early in the bankruptcy case, and from that point forward no automatic stay hindered Wells Fargo’s pursuit of foreclosure.

Because the bankruptcy court’s final judgment was ineffective in  “lifting”  the  stay,  Rule  8002(c)(1)(A)  does  not  apply.   Given the circumstances as they actually existed, the bankruptcy court did not abuse its discretion in allowing a short extension of time for Erickson to file a notice of appeal.2

2.     Timeliness of Appeal from the District Court

Ever keen to exploit technical errors, Erickson delayed filing his appeal to this court until 127 days after the district court ruled adversely to him on September 24, 2012.

Unfortunately for Wells Fargo, this filing was timely pursuant to Federal Rule of Civil Procedure 58, Federal Rule of Appellate Procedure 4(a)(7), and even Federal Rule of Bankruptcy Procedure 7058 because the district court did not enter judgment on a separate document.

In such circumstances, these rules authorize filing a notice of appeal up to 150 days after the final “order” entered without a separate document.

The appeal is timely.

3.     Merits

Erickson raises only two issues to this court that have been properly preserved in the courts below.3

The Texas Constitution requires a home-equity loan to be secured “by a lien that may be foreclosed upon only by a court order.”

Tex. Const. art. XVI, § 50(a)(6)(D).

Erickson argues that the deed of trust securing the home equity loan at issue in this case prohibits the Trustee from pursuing judicial foreclosure, hence the loan is constitutionally invalid.

However, as the district court found, the plain language of the deed states only

2 If the bankruptcy court thought it had discretion to grant this relief under 11 U.S.C.§ 105 in the face of an effective order lifting the automatic stay, and thus to abridge Federal Rules of Bankruptcy Procedure 8002 and 9006 expressly to the contrary, it was wrong. See In the Matter of Smith, 21 F.3d 660, 666 (5th Cir. 1994).

3 Erickson’s contention that the deed of trust securing his home equity loan imposed personal liability on him contrary to the Texas Constitution is not preserved here because the bankruptcy court found it untimely raised and did not rule on the issue. In re McCombs, 659 F.3d 503, 510 (5th Cir. 2011).

that the Trustee or a substitute trustee cannot act on behalf of the borrower in a judicial proceeding, not that a Trustee cannot enter into a judicial proceeding on its own behalf, such as filing suit to initiate a judicial foreclosure.

Thus the disputed provision of the home equity loan does not violate Section 50(a)(6)(D) of Texas’s constitution.

Erickson further argues that a lender’s right to judicially foreclose on a lien depends on a contractual provision in a deed of trust providing as much.

Because the deed of trust at issue here does not include such a provision, Erickson insists that the district court erred by permitting Wells Fargo to initiate judicial foreclosure.

Both this court and the Texas Courts of Appeals have held that judicial foreclosure and the ability of a trustee to foreclose under the power of sale in a deed of trust are separate and distinct remedies, either of which the trustee may elect to pursue.

See, e.g., Thurman v. Fed. Deposit Ins. Corp., 889 F.2d 1441, 1445 (5th Cir. 1989);

Kaspar v. Keller, 466 S.W.2d 326, 328 (Tex. Civ. App.—Waco 1971);

Am. Nat. Ins. Co. v. Schenck, 85 S.W.2d 833, 839 (Tex. Civ. App.—Amarillo 1935).

The district court did not err when it held that Wells Fargo had a right to pursue judicial foreclosure as a remedy independent of its contractual right to pursue non-judicial foreclosure under the power of sale in the deed of trust.

The judgment of the district court is AFFIRMED.

GRAVES, Circuit Judge, concurring in the judgment only:

I agree to affirm the judgment of the district court because I agree that Erickson’s home loan was valid under the Texas Constitution and that Wells Fargo may pursue a judicial foreclosure on the property securing the loan.

As the majority opinion explains, the plain language of Erickson’s deed of trust does not prohibit the Trustee from filing suit to initiate a judicial foreclosure.

Therefore, the terms of the loan do not violate the Texas constitutional requirement that a home-equity loan be “secured by a lien that may be foreclosed upon only by a court order.”

TEX. CONST. art. XVI, § 50(a)(6)(D).

Erickson’s argument that Wells Fargo may not pursue a judicial foreclosure absent a contractual provision allowing Wells Fargo to do so is also unavailing.

While the right to pursue foreclosure under the power of sale in a deed of trust is most certainly a right that arises from the parties’ contract, judicial foreclosure is a remedy independent of that contract.

As such, the district court did not err when it held that Wells Fargo had a right to seek the remedy of judicial foreclosure when Erickson defaulted on the August 9, 2002 loan.

I also agree that the Bankruptcy Court properly granted Erickson an extension of time to appeal the bankruptcy court’s judgment but for reasons different from those set out in the majority opinion.

As the district court explained, the automatic stay that was triggered when Erickson filed for Chapter 7 bankruptcy was lifted when he was discharged from bankruptcy on February 9, 2010.

Therefore, the bankruptcy court’s April 28, 2011 order in the related adversary proceeding between Erickson and Wells Fargo could not have lifted an automatic stay from Erickson’s Chapter 7 case, since the automatic stay ended when that case was closed.

For these reasons, I affirm.

Chase National Bank v. Norwalk, 291 U.S. 431, 441 (1934)

“The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger.

Whether under the Ohio practice it would have been possible for the trustee to intervene, we have no occasion to determine.

Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.”

“I concur in the judgment. I agree with the plurality opinion that the injunction against Yelp Inc. (Yelp) is invalid, but I begin with a more basic reason.

Yelp is not a party to this litigation, and the courts’ power to order people to do (or to refrain from doing) things is generally limited to the parties in the case.

Although there are qualifications to the rule, there is no exception that permits the sort of order we confront here: an order directing a nonparty website operator to remove third party user content just in case the user defaults on her own legal obligation to remove it.

Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court.”

Hassell v. Bird, 5 Cal.5th 522, 548 (Cal. 2018)

“The facts that petitioner was not a party to such suit, nor served with process of subpoena, nor had notice of the application made by the complainant for the mandatory injunction, nor was served by the officers of the court with such injunction, are immaterial, so long as it was made to appear that he had notice of the issuing of an injunction by the court.

To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.

High on Injunctions, § 1444; Mead v. Norris, 21 Wis. 310; Wellesley v. Mornington, 11 Beav. 181.”

In re Lennon, 166 U.S. 548, 554 (1897)

See; Chase National Bank v. Norwalk, 291 U.S. 431, 436-37 (1934)

It is true that persons not technically agents or employees may be specifically enjoined from knowingly aiding a defendant in performing a prohibited act if their relation is that of associate or confederate.

Since such persons are legally identified with the defendant and privy to his contempt, the provision merely makes explicit as to them that which the law already implies.

See In re Lennon, 166 U.S. 548.

But by extending the injunction to “all persons to whom notice of the injunction should come,” the District Court assumed to make punishable as a contempt the conduct of persons who act independently and whose rights have not been adjudged according to law.

See Alemite Mfg. Co. v. Staff, 42 F.2d 832.

Also; Hassell v. Bird, 5 Cal.5th 522, 553-54 (Cal. 2018)

The Court of Appeal appeared to read Ross to mean that a trial court has broad power to enjoin a nonparty with the practical ability to “effectuate” an injunction entered against a party. ( Hassell , supra , 247 Cal.App.4th at p. 1355, 203 Cal.Rptr.3d 203.)

But Ross (like Lennon before it) stands for a far more limited proposition:

A party’s agent or servant, acting in his or her capacity as an agent or servant , is bound to comply with an injunction against the party.

This is because the acts of the agent are imputed to the party; the agent’s failure to act as the law demands is the party’s failure, and it thus falls within the scope of the court’s power to punish.

The same is not, however, true of an individual who acts independently.

The law draws this distinction, as Judge Hand explained of Lennon , “for it is not the act described which the decree may forbid, but only that act when the defendant does it .”

( Alemite , supra , 42 F.2d at p. 833, italics added.)

The nonparty who independently does, or fails to do, what the decree commands is entitled to his or her own day in court.

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00024-P-BJ

Date Filed	#	Docket Text
04/15/2024	26	First MOTION to Extend Time to re-plead filed by Dianne Dorman (Daniel, Ryan) (Entered: 04/15/2024)
04/17/2024	27	ELECTRONIC ORDER granting 26 Plaintiff’s Motion to Extend Time and for Clarification. Plaintiff’s Amended Complaint that meets the requirements clearly set forth in Judge Pittman’s January 10, 2024 Order 5 is due no later than May 1, 2024. (Ordered by Magistrate Judge Jeffrey L. Cureton on 4/17/2024) (chmb) (Entered: 04/17/2024)

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00024-P-BJ

Date Filed	#	Docket Text
04/09/2024	24	ELECTRONIC ORDER denying 13 Mark Stephen Burke’s Motion to Intervene as Plaintiff and Memorandum of Law in Support for the reasons stated in Defendants’ response. See also Burke v. Ocwen Loan Serv., LLC, No. 4:21-CV-2591, 2022 WL 4597975, at *1 (S.D. Tex. Aug. 29, 2022). The Court notes that a motion to intervene is a non-dispositive, pretrial matter. See, e.g., MT223, LLC, v. Depositors Ins. Co., No. MO:21-CV-00044-DC-RCG, 2022 WL 20507651, at *1 n.1 (W.D. Tex. Sept. 16, 2022). (Ordered by Magistrate Judge Jeffrey L. Cureton on 4/9/2024) (Entered: 04/09/2024)
04/11/2024	25	Mark Stephen Burke’s as Proposed Intervenor’s Reply to Defendant’s Response and Objection to Timely Intervention filed by Mark Stephen Burke re: 15 Response (wxc) (Entered: 04/12/2024)
04/15/2024	26	First MOTION to Extend Time to re-plead filed by Dianne Dorman (Daniel, Ryan) (Entered: 04/15/2024)

PLAINTIFF’S MOTION TO EXTEND TIME and FOR CLARIFICATION

Plaintiff/Counter-Defendant asks the Court to extend the time to file its amended petition, as authorized by Federal Rule of Civil Procedure 6(b), and to clarify or expand upon its January 10th, 2024 order requiring Plaintiff to re-plead.

A.  INTRODUCTION

1.    Plaintiff is Dianne Dorman; defendants are Deutsche Bank National Trust Co., as Trustee for Securitized Asset Backed Receivables LLC Trust 2007-NC1, Mortgage Pass-Through Certificates, Series 2007-NC1 and PHH Mortgage Corporation.

2.   Plaintiff sued defendant for attempting to foreclose on Plaintiff’s homestead without following the requirements set out by the Texas Property Code, for violations of the Texas Debt Collection Act, and for violations of Federal Regulation X.

3.   The Court ordered Plaintiff to re-plead on January 10th, 2024, however, counsel for Plaintiff miss- read/miss-understood the order and did not realize that it was an order to replead, but instead thought that it was an order stating that if re-pleading is necessary, it must be done by the date stated in that order.

Once the second order to re-plead by April 15th, 2024 was served on Plaintiff’s counsel, it was then apparent that the court saw a defect in Plaintiff’s petition and was ordering Plaintiff to re-plead.

4.  Plaintiff must re-plead its petition by April 15th 2024.

5.   Plaintiff began drafting and then filed this motion to extend time as soon as she became aware of the need for additional time and before the deadline, which was approximately 4:00p.m. on April 15th, 2024.

This was after a week of researching the issues brought up by the court in the order, off and on, and comparing them to Plaintiff’s petition to see what needed to be amended.

Then, after spending most of the day on this again on April 15th, 2024, it became apparent to Plaintiff at approximately 4:00p.m. that it was unclear as to what the court saw was wrong with Plaintiff’s petition, and Plaintiff therefore decided the best course of action would be to file this motion to extend time in order seek clarification from the court as to what needs to be amended.

B.  ARGUMENT

6.   A court may grant a request to extend time for good cause.

Fed. R. Civ. P. 6(b)(1)(A); Rachel v. Troutt, 820 F.3d 390, 394–95 (10th Cir. 2016); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010).

7.  Plaintiff requests an extension of time to file its amended petition because after a week of researching the issues brought up by the court in the order to amend plaintiff’s petition, off and on, and comparing them to Plaintiff’s petition to see what needed to be amended.

And after spending most of the day on this again on April 15th, 2024, it became apparent to Plaintiff at approximately 4:00p.m. that it was unclear as to what the court saw was wrong with Plaintiff’s petition, and Plaintiff therefore decided the best course of action would be to file this motion to extend time in order seek clarification from the court as to what needs to be amended.

8.   Plaintiff asks the Court to extend the deadline until two weeks after the court provides guidance to Plaintiff’s counsel as to what is deficient in Plaintiff’s petition.

9.  Plaintiff’s request to extend time is for good cause and is not intended to delay these proceedings.

See Fed. R. Civ. P. 6(b)(1)(A).

10.  Defendants will not be prejudiced by the extension of time.

Rachel, 820 F.3d at 394–95; Ahanchian, 624 F.3d at 1259–60.

C.  CONCLUSION

11.   For these reasons, Plaintiff asks the Court to extend the time to file its amended petition until 2 weeks after the court provides guidance as to what is deficient in Plaintiff’s petition.

Respectfully submitted,

LAW OFFICES OF Ryan Daniel

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00024-P-BJ

Date Filed	#	Docket Text
04/09/2024	22	ORDER STRIKING AND UNFILING DOCUMENT 21 Additional Attachments to Main Document filed by PHH Mortgage Corporation, Deutsche Bank National Trust Company due to the following deficiency: The document(s) must be in proper form. Defendants shall refile their Appendix in proper form no later than 4/12/2024. (Ordered by Magistrate Judge Jeffrey L. Cureton on 4/9/2024) (saw) (Entered: 04/09/2024)
04/09/2024	23	Appendix in Support re: 15 Response in Opposition to 13 Motion to Intervene, by Defendants Deutsche Bank National Trust Company, PHH Mortgage Corporation. (Jones, Taneska) Modified document title per MJ chambers on 4/9/2024 (bdb). (Entered: 04/09/2024)
04/09/2024	24	ELECTRONIC ORDER denying 13 Mark Stephen Burke’s Motion to Intervene as Plaintiff and Memorandum of Law in Support for the reasons stated in Defendants’ response. See also Burke v. Ocwen Loan Serv., LLC, No. 4:21-CV-2591, 2022 WL 4597975, at *1 (S.D. Tex. Aug. 29, 2022). The Court notes that a motion to intervene is a non-dispositive, pretrial matter. See, e.g., MT223, LLC, v. Depositors Ins. Co., No. MO:21-CV-00044-DC-RCG, 2022 WL 20507651, at *1 n.1 (W.D. Tex. Sept. 16, 2022). (Ordered by Magistrate Judge Jeffrey L. Cureton on 4/9/2024) (Entered: 04/09/2024)

The Court will also take this opportunity to address Plaintiff’s Motion for Recusal of the Magistrate Judge. ECF No. 116. Appealing to 28 U.S.C. § 455(a), Plaintiff seeks recusal of United States Magistrate Judge Jeffrey Cureton from this case. See id. The Motion lodges weighty attacks at Magistrate Judge Cureton, arguing “the appearance of partiality has arisen during prior court proceedings; the Honorable Magistrate Judge Jeff L. Cureton has failed to weight the scales of justice equally between the contending parties.”

United States Magistrate Judge Jeffrey L. Cureton made Findings, Conclusions, and a Recommendation (“FCR”) regarding Defendants’ Motion to Dismiss (ECF No. 16). ECF No. 32. Plaintiff Primo Baggiolini failed to timely file an Objection to the FCR, however three days after the deadline, Plaintiff requested an extension to object. ECF No. 33. Because the Magistrate Judge recommended the dismissal of this action, the Court granted Plaintiff the extension and he filed two Objections. ECF Nos. 35, 36.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L.HORAN, UNITED STATES MAGISTRATE JUDGE

Movant McCormick 101, LLC, (“McCormick”) has filed a Motion for Leave to File to Intervene.

See Dkt. No. 7. Parties did not file a response.

United States District Judge Sam A. Lindsay has referred this motion to the undersigned United States Magistrate Judge for hearing, if necessary, and findings, conclusions, and a recommendation under 28 U.S.C. § 636(b).

See Dkt. No. 15.

28 U.S.C. § 636

(b)

(1) Notwithstanding any provision of law to the contrary- (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.

A judge of the court may reconsider any pretrial matter under this subparagraph

(A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial 1 relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

(2) A judge may designate a magistrate judge to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate judge to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.

(3) A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.

(4) Each district court shall establish rules pursuant to which the magistrate judges shall discharge their duties.
28 U.S.C. § 636

“The Motion to Intervene is fully briefed. See (Docs. 10, 13). ”

Before the Court is a motion to intervene filed by four transgender women, who are incarcerated by the California Department of Corrections and Rehabilitation, and the Transgender Gender-Variant & Intersex Justice Project (“TGIJP”).

The prospective intervenors seek to intervene as a matter of right to defend their interests.

(See id. at 2.)

The defendants oppose the motion.

Because the Court finds that the intervenors have a protectible interest in this litigation and the defendants may not adequately defend this interest, the Court GRANTS the motion to intervene with conditions.