Hall v. Deutsche Bank National Trust Company et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.July 28, 2016

1 ATL:0530018/01197:529867v1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLARENCE HALL, Plaintiff, vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AND SELECT PORTFOLIO SERVICING, INC., JOHN DOE 1-10, JANE DOE 1-10, Defendants. § § § § § § § § § § § § § § § Civil Action File No. 1:16-CV-2114-AT MOTION TO DISMISS Pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6), Deutsche Bank National Trust Company, as Trustee, for the benefit of the Certificate Holders of the GSAMP Trust 2005-HE3, Mortgage Pass Through Certificates, Series 2005- HE3, named in the Complaint as Deutsche Bank National Trust Company (“Trustee”), Select Portfolio Servicing, Inc. (“SPS”), and Mortgage Electronic Registration Systems, Inc. (“MERS” and, together with Trustee and SPS, the “Defendants”), by and through the undersigned counsel, hereby move this Court Case 1:16-cv-02114-AT Document 13 Filed 07/28/16 Page 1 of 4 2 ATL:0530018/01197:529867v1 for an order dismissing this action with prejudice, including all claims and causes of action therein. In support of this Motion, Defendants rely upon the pleadings and documents filed by Plaintiff, the Court’s record in this action and the public records of prior lawsuits filed by Plaintiff, and the Memorandum of Law with supporting exhibits, filed contemporaneously herewith. DATED: July 28, 2016. Respectfully submitted, LOCKE LORD LLP /s/ John Michael Kearns Elizabeth J. Campbell Georgia Bar No. 349249 ecampbell@lockelord.com John Michael Kearns Georgia Bar No. 142438 john.kearns@lockelord.com 3333 Piedmont Road NE Terminus 200, Suite 1200 Atlanta, GA 30305 Phone: 404-870-4600 Fax: 404-872-5547 Attorneys for Defendants Case 1:16-cv-02114-AT Document 13 Filed 07/28/16 Page 2 of 4 3 ATL:0530018/01197:529867v1 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing motion has been prepared in compliance with Local Rule 5.1 (B) and (C), using 14-point Times New Roman font. /s/ John Michael Kearns John Michael Kearns Georgia Bar No. 142438 Case 1:16-cv-02114-AT Document 13 Filed 07/28/16 Page 3 of 4 4 ATL:0530018/01197:529867v1 CERTIFICATE OF SERVICE I hereby certify that on this 28th day of July, 2016, I electronically filed the foregoing MOTION TO DISMISS with the Clerk of Court using the CM/ECF system. I further certify that I mailed the foregoing document by first-class mail to the following: Clarence Hall 2235 Village Drive Covington, Georgia 30016 /s/ John Michael Kearns John Michael Kearns Georgia Bar No. 142438 Attorney for Defendants Case 1:16-cv-02114-AT Document 13 Filed 07/28/16 Page 4 of 4 ATL:0530018/01197:528172v3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CLARENCE HALL, Plaintiff, vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AND SELECT PORTFOLIO SERVICING, INC., JOHN DOE 1-10, JANE DOE 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:16-CV-2114-AT BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT This lawsuit is simply Plaintiff Clarence Hall’s latest attempt to avoid or delay lawful eviction from certain real property he used to own. Unfortunately, the Complaint does not come close to meeting the minimum pleading standard of Rule 8 of the Federal Rules of Civil Procedure. The Complaint is hardly anything more than an haphazard amalgamation of various items that appear to have been copied from the Internet and only references the defendants identified in the style of the case in passing. Similarly, Plaintiff lists a number of different causes of action in the title to the Complaint, but does not discuss most of these causes of action in the Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 1 of 22 2 ATL:0530018/01197:528172v3 remainder of his pleading. More importantly, Plaintiff does not set forth specific facts providing grounds for relief as against the named defendants, and the alleged claims are barred by res judicata. For these reasons, explained in more detail below, Defendants Deutsche Bank National Trust Company, as Trustee, for the benefit of the Certificate Holders of the GSAMP Trust 2005-HE3, Mortgage Pass Through Certificates, Series 2005-HE3, named in the Complaint as Deutsche Bank National Trust Company (“Trustee”), Select Portfolio Servicing, Inc. (“SPS”), and Mortgage Electronic Registration Systems, Inc. (“MERS” and, together with Trustee and SPS, the “Defendants”), move to dismiss this entire action with prejudice. FACTUAL AND PROCEDURAL BACKGROUND Although unclear from Plaintiff’s Complaint, it appears the basis of this action is the already-completed foreclosure of the property located at 2235 Village Drive, Covington, Georgia (the “Property”). Plaintiff obtained a Loan from Southern Lenders Mortgage Corporation (“SLMC”) on or about December 10, 2004. In conjunction with the Loan, Plaintiff executed a Security Deed to the Property in favor of MERS, as grantee and nominee for SLMC and SLMC’s successors and assigns, which deed was recorded on January 5, 2005, at Deed Book 1820, Page 527, Newton County, Georgia, official records (the “Security Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 2 of 22 3 ATL:0530018/01197:528172v3 Deed”). A true and correct copy of the Security Deed is attached hereto as Exhibit A.1 The Security Deed was subsequently assigned to Trustee. This assignment was recorded on July 1, 2011, at Deed Book 1929, Page 394, Newton County, Georgia, official records (the “Assignment”). A true and correct copy of the recorded Assignment is attached hereto as Exhibit B. After Plaintiff defaulted on the Loan, the Property was foreclosed. The Deed Under Power of Sale was recorded on February 5, 2016, at Deed Book 3404, Page 364, Newton County, Georgia, official records (the “Deed Under Power”). A true and correct copy of the Deed Under Power is attached hereto as Exhibit C. Notably, Plaintiff is no stranger to litigation having filed multiple prior actions in an attempt to avoid foreclosure of the Property and his eviction therefrom, including those identified below: 2011 Litigation: On August 1, 2011, Plaintiff filed a lawsuit in this Court styled Clarence Hall v. Deutsche Bank National Trust Co. and Rubin Lublin, LLC, Civil Action No. 1:11-cv-02524-AT. In the 2011 Lawsuit, Plaintiff sought nearly $2.4 million in damages, as well as quiet title to the Property, disgorgement of 1 A district court may take judicial notice of certain facts without converting a motion to dismiss into a motion for summary judgment....Public records are among the permissible facts that a district court may consider.” Univ. Express, Inc. v. S.E.C., 177 F. App’x. 52, 53 (11th Cir. 2006). Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 3 of 22 4 ATL:0530018/01197:528172v3 amounts acquired by Defendants, money for his pain and suffering, interest, costs, and fees. The case was dismissed without prejudice by this Court on August 28, 2012, for Plaintiff’s failure to comply with an order of the Court (namely, Plaintiff failed to file a certificate of interested persons, an individual preliminary report and discovery plan, and initial disclosures). 2014 Bankruptcy: On November 3, 2014, Plaintiff filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The case was filed in the U.S. Bankruptcy Court for the Northern District of Georgia and was assigned Case No. 14-71652-bem. The case was dismissed shortly thereafter on November 21, 2014, for Plaintiff’s failure to pay the filing fee. Plaintiff received no discharge. 2015 Bankruptcy: On August 31, 2015, Plaintiff filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The case was filed in the U.S. Bankruptcy Court for the Northern District of Georgia and was assigned Case No. 15-66539-bem. The case was dismissed shortly thereafter on September 15, 2015, for Plaintiff’s failure to file the required schedules or a list of creditors. Plaintiff received no discharge. 2015 Litigation: On November 2, 2015, Plaintiff filed a lawsuit styled Clarence Hall v. Mortgage Electronic Registration Systems, Inc., Civil Action No. 2015CV-2109-3, in the Superior Court of Newton County. In the 2015 Lawsuit, Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 4 of 22 5 ATL:0530018/01197:528172v3 Plaintiff sought, among other things, the cancellation of the Assignment. MERS’ Motion for Judgment on the Pleadings was granted by the Superior Court on June 8, 2016. A true and correct copy of the order granting said motion is attached hereto as Exhibit D. Plaintiff did not appeal the judgment and his time for appeal has long-since expired. 2016 Bankruptcy: On March 10, 2016, Plaintiff filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The case was filed in the U.S. Bankruptcy Court for the Northern District of Georgia and was assigned Case No. 16-54548-bem. The case was dismissed shortly thereafter on April 12, 2016, for Plaintiff’s failure to comply with an order of the bankruptcy court requiring he file additional documentation. Plaintiff received no discharge. 2016 Litigation: On or about February 29, 2016, Plaintiff filed a lawsuit styled Clarence Hall v. Deutsche Bank National Trust Company, Civil Action No. 2016CV-409-3, in the Superior Court of Newton County. In the 2016 Lawsuit, Plaintiff sought the cancellation of the Deed Under Power. Trustee’s Motion for Judgment on the Pleadings is pending before the Superior Court of Newton County; however, Plaintiff has failed to respond to Trustee’s Motion within the time provided by Georgia law. Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 5 of 22 6 ATL:0530018/01197:528172v3 The Instant Lawsuit: Plaintiff filed the Complaint in this action on June 21, 2016. Most of the 76 pages of the Complaint consist of unnumbered paragraphs and items “copied and pasted” from the Internet. In the title of the case, Plaintiff lists the following claims: R.I.C.O., fraud, bank fraud, conspiracy/obstruction of justice, tax fraud, money laundering, wire fraud, perjury, and “U.S. Patriot Act Title III.” (Doc. 1, p. 1.) Plaintiff also claims that he is proceeding under “Title 42 USC 1983, 1981, 1985, 1988, Title 18 USC 241, 242, 1512, 1968, 1964” and seeks “injunctive and declaratory relief and other damages . . . .” (Doc. 1, p. 1.) Additionally, Plaintiff asserts the following as “grounds” throughout the Complaint: “patriot act domestic terrorist” (GROUND 1) (Doc. 1, p. 2); R.I.C.O. (GROUND 2) (Doc. 1, p. 60); “bank fraud, mortgage fraud” (GROUND 3) (Doc. 1, p. 64); due process violations (GROUND 4) (Doc. 1, p. 67); and “Jurisdiction in State Court Violations” (GROUND 5) (Doc. 1, p. 72). Nowhere in the Complaint, however, does Plaintiff articulate any facts to substantiate any of these purported causes of action. As a threshold matter, the allegations of the Complaint are so vague and scattered that Defendants cannot provide the Court with a thorough or coherent summary of the facts. Plaintiff does not even mention the foreclosure sale, which is the crux of his state court proceedings. Likewise, Plaintiff makes no reference to Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 6 of 22 7 ATL:0530018/01197:528172v3 SPS or Trustee outside of the style of the case and the list of service information. (Doc. 1, pp. 1-2.) MERS is mentioned once, solely with respect to the Assignment. (Doc. 1, p. 3.) Because the Complaint fails to state any claim upon which relief can be granted, and fails to sufficiently place Defendants on notice of the claims against them such that they could form a coherent response to the allegations, they now move to dismiss this action in its entirety. ARGUMENT AND CITATION TO AUTHORITY I. The Complaint Is Subject to Dismissal as a Shotgun Pleading. “A complaint that fails to articulate claims with sufficient clarity to allow the defendant to frame a responsive pleading constitutes a ‘shotgun pleading.’” Byrne v. Nezhat, 261 F.3d 1075, 1128-29 (11th Cir. 2001); see also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). A “shotgun pleading” is subject to dismissal for failure to comply with the minimum pleading requirements of the Federal Rules of Civil Procedure. See, e.g., PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 906 n.4 (11th Cir. 2010) (announcing the Eleventh Circuit’s condemnation of shotgun pleadings); LaCroix v. Western District of Kentucky, U.S., 627 F. App’x 816, 818- 19 (11th Cir. 2015) (affirming dismissal of complaint where the pleading was Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 7 of 22 8 ATL:0530018/01197:528172v3 deemed a “shotgun pleading” because it did not comply with Rules 8 and 10 and it was impossible to know which allegations of fact were intended to support each claim for relief). Plaintiff’s Complaint is an excellent example of a shotgun pleading. Plaintiff’s Complaint fails to comply with either Rule 8’s requirement that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief” or Rule 10’s mandate that the allegations of the Complaint be set forth in separately numbered paragraphs. See Fed. R. Civ. P. 8(a), 10(b). While the Complaint includes a few numbered paragraphs, unnumbered paragraphs are scattered throughout the document and most of the Complaint are not allegations at all but simply “copy and pasted” items from the Internet. This makes the Complaint very difficult to follow and would make it impossible for Defendants to respond coherently in an Answer. The allegations of the Complaint are far from “concise” and “direct” as Rule 8 requires. See Fed. R. Civ. P. 8(d)(1). On the contrary, the allegations here are broad and far-reaching and lodged against “Defendants,” collectively. (See, e.g. Doc. 1, p. 60.) The allegations relate to subject matter unconnected by averment to any of the parties to the action, including Plaintiff himself. As noted, the allegations never specify any transaction or occurrence that gives rise to the Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 8 of 22 9 ATL:0530018/01197:528172v3 Complaint. Thus, it is not at all clear from the allegations of the Complaint that Plaintiff is entitled to relief from anyone, much less Defendants. Accordingly, the Complaint fails to give Defendants “fair notice of what the claim is and the grounds upon which it rests” as required. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Defendants are not even provided enough detail to review their records to determine the relevant course of conduct. Plaintiff’s Complaint fails to set forth any decipherable claims against the named defendants-much less provide a clear statement with “precision that the defendant will be able to discern what the plaintiff is claiming and to frame a responsive pleading,” as required. Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Instead, the claims are muddled and incomplete, preventing Defendants from mounting any appropriate defenses. It is well-established that shotgun pleadings are an unacceptable form of establishing a claim for relief. Strategic Income Fund, 305 F.3d at 1296. Consequently, dismissal of this shotgun complaint is warranted. II. Legal Standard for Motion to Dismiss under Rule 12(b)(6). To survive a motion to dismiss brought under Rule 12(b)(6), a complaint must contain sufficient factual allegations to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 556 Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 9 of 22 10 ATL:0530018/01197:528172v3 U.S. 662 (2009) (same). The pleading must have “more than labels and conclusions.” Twombly, 550 U.S. at 555. “[U]nadorned, the-defendant- unlawfully-harmed-me accusation[s]” cannot withstand a motion to dismiss. Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663. Complaints that do not meet the plausibility standard are to be dismissed. See Twombly, 550 U.S. at 559. Although pro se complaints are to be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se plaintiffs have “no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988). “[A] pro se pleading must suggest (even if inartfully) that there is at least some factual support for a claim; it is not enough just to invoke a legal theory devoid of any factual basis.” Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015). No plausible claims have been identified in this case. Accordingly, dismissal is Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 10 of 22 11 ATL:0530018/01197:528172v3 proper.2 III. Res Judicata Bars This Action. Res judicata operates to preclude a party from re-litigating in a subsequent proceeding issues that were or could have been raised in the original action. Brown v. Felsen, 442 U.S. 127, 131 (1979) (“Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.”); Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1375 (11th Cir. 2011) (explaining that res judicata “bars the filing of claims which were raised or could have been raised in an earlier proceeding”). The purpose of res judicata is to relieve parties of the significant costs of vexatious litigation, conserve judicial resources, prevent inconsistent decisions, and encourage reliance on the finality of an adjudication. Thus, the doctrine is intended to apply “ ‘even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added . . . .’ ” Neely v. City of Riverdale, 681 S.E.2d 677, 679 (Ga. Ct. App. 2009) (internal citations omitted). 2 While the Court has discretion to allow a plaintiff leave to amend a pleading, such leave should not be granted where an amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 11 of 22 12 ATL:0530018/01197:528172v3 When a federal court is “asked to give res judicata effect to a state court judgment, [it] must apply the res judicata principles of the law of the state whose decision is set up as a bar to further litigation.” Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006) (citation omitted); see also Brundidge v. U.S. Bank Nat’l Ass’n, No. 1:13-CV-1491-WSD, 2014 WL 128111, at *2 (N.D. Ga. Jan. 13, 2014) (applying Georgia law). In Georgia, res judicata applies to bar a cause of action where: (1) the causes of action are the same, (2) the identity of the parties or their privies is the same, and (3) there has been previous adjudication on the merits by a court of competent jurisdiction. O.C.G.A. § 9-12-40; Brundidge, 2014 WL 128111, at *2; Karan, Inc. v. Auto-Owners Ins. Co., 629 S.E.2d 260, 262 (Ga. 2006). All three conditions are met in this case. Therefore, res judicata applies and dismissal is warranted. A. The Causes of Action Are the Same. Res judicata “bars subsequent actions as to all matter[s] put in issue or which could have been put in issue.” Dove v. Ty Cobb Healthcare Sys., Inc., 729 S.E.2d 58, 61 (Ga. Ct. App. 2012); Walker v. Kroger Co., 353 S.E.2d 551, 553 (Ga. Ct. App. 1987) (“[W]here the factual basis of the claims asserted in both actions is identical, the former action bars the second action.”). Here, there can be no question that the Assignment claim raised in the 2015 Litigation and the Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 12 of 22 13 ATL:0530018/01197:528172v3 Assignment-related “claim” in this case are the same. In the 2015 Litigation, Plaintiff sought the cancellation of the Assignment. In this case, Plaintiff again attacks the Assignment as a product of “fraud” and demands “immediate return of his property.” (Doc. 1, pp. 3, 75.) Though it is difficult to determine exactly what it is that Plaintiff is seeking, it is clear that any relief he seeks with respect to the Assignment is barred by res judicata. Indeed, the doctrine of res judicata is designed to prevent exactly this sort of duplicative litigation. As previously explained by District Judge Story of the Northern District of Georgia: ‘[I]f a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, . . . the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.’ . . . ‘Res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the same nucleus of operative fact.’ . . . Plaintiff's second suit is based on the same factual predicate as his first suit . . . . In both cases, Plaintiff challenges [the] authority to foreclose on the Property. The same Property, Note, Security Deed, and Assignment are at issue in both suits. Milburn v. Aegis Wholesale Corp., No. 1:12-CV-1886-RWS, 2013 WL 1747915, at *4 (N.D. Ga. Apr. 22, 2013). The same principles apply here. Both actions arise out of the same subject matter-namely, the Loan, Security Deed, Assignment, the right of Trustee to pursue foreclosure of the Property. In the 2015 Litigation, Plaintiff attempted to Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 13 of 22 14 ATL:0530018/01197:528172v3 have the Assignment cancelled and to quiet title in himself. Likewise, in the instant case, Plaintiff seeks to set aside the foreclosure of the Property (by demanding “immediate return of his property”). Plaintiff already had the opportunity litigate any viable claims arising out of the facts at issue in this case. Thus, dismissal of this case is appropriate. Smith v. Thurmond, 854 F. Supp. 2d 1338, 1342 (S.D. Ga. 2010) (finding res judicata barred causes of action where Georgia superior court previously ruled on the merits of plaintiff’s causes of action in prior suit, seeking the same remedy and asserting identical substantive claims); Waldroup v. Greene Cnty. Hosp. Auth., 463 S.E.2d 5, 7 (Ga. 1995) (finding res judicata applied where plaintiff “sought to reassert the exact same claim that she previously had asserted in her initial complaint, and which had been dismissed”). B. There is privity among the parties. Privity between the parties exists. Under Georgia law, privity describes a relationship between one “ ‘who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.’ ” Lilly v. Heard, 761 S.E.2d 46, 50 (Ga. 2014). In the 2015 Litigation, Plaintiff named MERS as a defendant. In the instant case, Plaintiff seeks relief against MERS, SPS, and Trustee. These parties’ interests are directly aligned as they relate to Plaintiff’s Loan. See Brown v. SunTrust Bank, Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 14 of 22 15 ATL:0530018/01197:528172v3 No. 2:14-CV-0014-RWS-JSA, 2014 WL 4925719, at *7 (N.D. Ga. Sept. 30, 2014) (finding prior security deed holder and assignee were in privity for res judicata purposes); Janson v. Deutsche Bank Nat'l Trust Co., No. 14-CV-05639 JSC, 2015 WL 1250092, at *10 (N.D. Cal. Mar. 18, 2015) (finding MERS, as the nominee for the original lender, in privity with trustee); Bailey v. Deutsche Bank Trust Co. Americas, No. 3:13-CV-00001 CAR, 2013 WL 820411, at *3 (M.D. Ga. Mar. 5, 2013) (finding privity for purposes of res judicata because both the prior loan servicer “and Defendant shared a concurrent interest in collecting the debt owed by Plaintiff and enforcing the same property right, which was secured by the Property”). Here, the parties are all connected to Plaintiff’s Loan as SPS last serviced the Loan before the 2015 foreclosure sale and Trustee last held the Security Deed before the foreclosure sale and bought the Property at the sale. (See Exs. B and C). MERS is the nominee for the original lender and its successors, including Trustee, in the Security Deed, and MERS, as nominee, assigned the Security Deed to Trustee. (See Exs. A and B.) Accordingly, this prong of the res judicata analysis is satisfied, as Defendants are in privity with one another. C. There Has Been a Final Adjudication on the Merits. In Georgia, “ ‘[a] dismissal with prejudice operates as an adjudication on the merits. It is a final disposition. It bars the right to bring another action on the Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 15 of 22 16 ATL:0530018/01197:528172v3 same claim or cause.’ ” Crew v. Wash. Mut. Bank, No. 1:07-CV-2374WSD, 2008 WL 660316, at *4 (N.D. Ga. Mar. 6, 2008) (citing Marchman & Sons, Inc. v. Nelson, 306 S.E.2d 290, 293 (Ga. 1983)). In the 2015 Litigation, the Newton County Superior Court reviewed the merits of the case, including MERS’ Motion for Judgment on the Pleadings. After considering the claims alleged and the legal arguments at issue, the Newton County Superior Court entered an order granting judgment on the pleadings in favor of MERS. (Ex. D.) Such a judgment-and Plaintiff’s failure to timely appeal it-constitutes a final adjudication on the merits by a court of competent jurisdiction for the purpose of res judicata. Crew, 2008 WL 660316, at *4 (finding that Georgia superior court action dismissed with prejudice operated as a final judgment on the merits so as to preclude federal district court claims); Dillingham v. Doctors Clinic, P. A., 223 S.E.2d 625, 626 (Ga. 1976) (“It is important to note that the sustaining of a motion to dismiss for failure to state a claim is res judicata on the merits of the claim.”); In re Estate of Bagley, 522 S.E.2d 281, 283 (Ga. Ct. App. 1999) (finding final judgment on the merits where plaintiff “failed to appeal the [final] order within 30 days”). Here, there can be no question that Plaintiff has had a full and fair opportunity to litigate his claims, and they have been fully adjudicated. Accordingly, res judicata bars him from bringing them again. Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 16 of 22 17 ATL:0530018/01197:528172v3 IV. Plaintiff’s Complaint Should Be Dismissed for Failure to Allege Specific Facts Against Each Defendant. Where the allegations of a complaint fail to tie an individual defendant to any allegation of wrongful conduct, the complaint fails to state a plausible claim upon which relief can be granted against that defendant. See, e.g., Iqbal, 556 U.S. at 678. (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) The principle applies to Defendants here and dictates dismissal of the Complaint. Here, SPS and Trustee are not mentioned once in the entire pleading other than in the style of the Complaint. For this reason, all claims of the Complaint should be dismissed as to SPS and Trustee. See, e.g., McAlees v. Internal Revenue Service, No. 96-8171-CIV-RYSKAMP, 1996 WL 756522, at *3 (S.D. Fla. Oct. 8, 1996) (dismissing claims against numerous defendants named only in the style of the complaint). While Plaintiff does refer to MERS specifically with respect to the Assignment, any claim with respect to the Assignment is barred by res judicata. Accordingly, Defendants should be dismissed from this case. Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 17 of 22 18 ATL:0530018/01197:528172v3 V. Plaintiff’s Complaint is Groundless. Plaintiff sets forth several grounds for relief: “patriot act domestic terrorist” (GROUND 1) (Doc. 1, p. 2); R.I.C.O. (GROUND 2) (Doc. 1, p. 60); “bank fraud, mortgage fraud” (GROUND 3) (Doc. 1, p. 64); due process violations (GROUND 4) (Doc. 1, p. 67); and “Jurisdiction in State Court Violations” (GROUND 5) (Doc. 1, p. 72). None of these claims are articulated with any clarity and none of these claims set forth bases for relief against any of the Defendants. The first ground for relief appears to be based almost solely on the Assignment and a twenty-page affidavit from a case pending in 2009 in the Bankruptcy Court for the Northern District of Arizona and other various items pulled from the Internet. (Doc. 1, pp. 2-60.) Plaintiff never sets forth how Defendants, or any of them, violated the Patriot Act or defrauded Plaintiff. Accordingly, this ground fails to state a claim. The second ground for relief is “R.I.C.O.” (Doc. 1, pp. 60-63.) Plaintiff provides no supporting facts whatsoever, choosing instead to set forth seemingly random conclusory allegations and case law citations over the course four (4) pages of the Complaint. (Doc. 1, pp. 60-63.) Plaintiff does not identify if he is attempting to assert a Federal or Georgia RICO claim. Under either federal or state law, however, Plaintiff must allege, at a minimum, (1) conduct (2) of an enterprise Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 18 of 22 19 ATL:0530018/01197:528172v3 (3) through a pattern (4) of racketeering activity. See O.C.G.A. § 16-14-4(a); 18 U.S.C. §§ 1961-1968. Each of these elements must be pled with particularity as required under Rule 9(b). See Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th Cir. 2007). Here, Plaintiff has wholly failed to set forth a single fact to support a RICO claim against Defendants. Therefore, this claim must be dismissed. The third ground for relief is “Bank Fraud; Mortgage Fraud in State Court Proceedings.” (Doc. 1, p. 64.) Instead of setting forth any facts, Plaintiff sets forth an opinion from a state court New York case. (Doc. 1, pp. 64-67.) Fraud must be pleaded with particularity pursuant to Rule 9(b). Thomas v. Pentagon Fed. Credit Union, 393 Fed. App'x 635, 638 (11th Cir. 2010). Plaintiff has not pleaded a claim for fraud against the named Defendants, with particularity or otherwise. Accordingly, this claim must be dismissed. The fourth ground for relief is “due process violations.” (Doc. 1, p. 67.) Again, no facts are alleged as against Defendants or otherwise. Plaintiff conclusorily alleges that Defendants “acted under simulation of a legal process” and Plaintiff was denied a “fair trial.” (Doc. 1, p. 71.) If Plaintiff is referring to the previous State Court proceedings (which is unclear), he failed to allege that Defendants, who are private parties, had engaged in any state action, which is Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 19 of 22 20 ATL:0530018/01197:528172v3 necessary to maintain any such claim. Kennedy v. United States, 478 F. App'x 584, 586 (11th Cir. 2012) (dismissing due process claim in wrongful foreclosure context). This claim accordingly fails. Finally, the fifth ground for relief is “Jurisdiction in State Court Violations.” (Doc. 1, p. 72.) Though it is difficult to understand, this fifth ground for relief appears based in Defendants “fail[ing] to furnish the original note . . . .” (Doc. 1, p. 73.) Such a claim is meritless and this claim must be dismissed. It is well- established that Georgia law does not require Trustee, SPS, or MERS to produce the original Note. Morales v. Chase Home Fin., LLC, 1:11-CV-1305-RWS, 2012 WL 95550, at *3 (N.D. Ga. Jan. 12, 2012) (“Plaintiff’s ‘produce the note’ theory…is not available under Georgia law, as Georgia law does not require a lender to produce the original note.”); Watkins v. Beneficial, HSBC Mortg., 1:10- CV-1999-TWT-RGV, 2010 WL 4318898, at *4 (N.D. Ga. Sept. 2, 2010) adopted at 2010 WL 4312878 (N.D. Ga. Oct. 21, 2010) (“To the extent plaintiff is alleging that [defendant] failed to produce the original promissory note, ‘such arguments have been rejected by this court and by other courts.’ ” (cits. omitted)). CONCLUSION For the reasons set forth herein, Defendants respectfully request that the Court grant this Motion and dismiss this action with prejudice, taxing all costs Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 20 of 22 21 ATL:0530018/01197:528172v3 against Plaintiff and granting them all relief, in law or in equity, to which they may be justly entitled. Dated: July 28, 2016. LOCKE LORD LLP s/ John Michael Kearns Elizabeth J. Campbell Georgia Bar No. 349249 ecampbell@lockelord.com John Michael Kearns Georgia Bar No. 142438 john.kearns@lockelord.com Terminus 200, Suite 1200 3333 Piedmont Road, N.E. Atlanta, GA 30305 (404) 870-4600 (404) 806-5679 Facsimile Attorneys for Defendants Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 21 of 22 22 ATL:0530018/01197:528172v3 CERTIFICATE OF SERVICE I hereby certify that on July 28, 2016, I electronically filed BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT with the Clerk of Court using the CM/ECF system and served a copy of the same upon the following pro se party by U.S. Mail: Clarence Hall 2235 Village Drive Covington, Georgia 30016 /s/ John Michael Kearns John Michael Kearns Georgia Bar No. 142438 One of the Attorneys for Defendants Case 1:16-cv-02114-AT Document 13-1 Filed 07/28/16 Page 22 of 22