Wright v. Bank of America

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Ga.October 28, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION LORETTA WRIGHT, ) ) Plaintiff, ) ) v. ) CASE NO.: ) 4:16-CV- 00087-CDL-MSH BANK OF AMERICA, N.A., ) ) Defendant. ) MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW Defendant Bank of America, N.A. (“BANA” or “Defendant”)1 by and through undersigned counsel, and files this Motion to Dismiss the Complaint (the “Complaint”) filed by Plaintiff Loretta Wright (“Plaintiff”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. In support thereof, Defendant provides the following memorandum of points and authorities. INTRODUCTION AND STATEMENT OF THE ALLEGED FACTS2 This case arises out of a secured loan (the “Loan”) on a parcel of residential property owned by the Plaintiff and located at 2226 Mahan Drive, Columbus, GA 1 Plaintiff names “Bank of America” which is not a known entity. BANA assumes that Plaintiff meant to name it and acknowledged service of process in its name. See Doc. 18. 2 The “facts” as alleged in this Complaint are taken as true for purposes of this Motion only. Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 1 of 8 2 31907 (the “Property”). (Compl. p. 1). Plaintiff’s Complaint appears to be a form that contains a paucity of any facts or description of the basis for her claims against BANA. It references a contract and security deed, and then complains of misconduct from “October 2000 - Present” including “wrongfully [depriving her] of an opportunity to cure the delinquency on their [sic] loan, pay the arrears due under the loan to save their [sic] home.” (Compl. p. 4). Ultimately, Plaintiff does not assert a cognizable legal claim, nor does she assert any factual allegations that would state a claim for relief. Plaintiff has fallen far short of the necessary standard to properly set forth a claim against Defendant - with the result being that Plaintiff’s Complaint cannot survive a motion to dismiss. Pursuant to Rule 12(b)(6), the Court should dismiss Plaintiff’s Complaint with prejudice. STANDARD OF REVIEW Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, “unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001). Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 2 of 8 3 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted). More specifically, “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. 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.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations omitted). To survive a Rule 12(b)(6) motion, “the plaintiff’s factual allegations, when assumed to be true, ‘must be enough to raise a right to relief above the speculative level.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009) (quoting Twombly, 550 U.S. at 555). ARGUMENT I. THE COMPLAINT IS A SHOTGUN PLEADING THAT MUST BE DISMISSED. Plaintiff’s Complaint is comprised almost exclusively of generic buzzwords and purported legal conclusions that do not identify the alleged activity that forms the basis for her purported claim. It is an impermissible shotgun pleading that should be dismissed. Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 3 of 8 4 The Eleventh Circuit has condemned shotgun pleadings “upwards of fifty times.” See, e.g., Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n.54 (11th Cir. 2008). “[S]hotgun complaints” are those in which “any allegations that are material are buried beneath innumerable pages of rambling irrelevancies.” Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). The defining characteristic of a shotgun complaint is that it fails “to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading.” Beckwith v. Bellsouth Telecomms., Inc., 146 Fed. App. 368, 371 (11th Cir. 2005); see also Strategic Income Fund v. Spear, Leeds & Kellogg, 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (describing a shotgun complaint as one that “contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts . . . contain irrelevant factual allegations and legal conclusions.”). Plaintiff fails to identify specific factual matter that would support each claim and, thus, Defendant is left to sift through the generic information contained in the form submitted by Plaintiff that amounts to rambling and incomprehensible allegations to determine those that might relate in some way to each claim for relief. In addition, to the extent that the Complaint identifies any substantive allegations at all, those allegations are entirely conclusory. These gross generalizations are meaningless without specific facts to support them and are not tailored to any real Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 4 of 8 5 or legitimate dispute between the parties. In sum, Plaintiff’s Complaint is a shotgun pleading, and it should be dismissed on that basis alone. II. THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(B)(6) FOR FAILURE TO STATE A CLAIM. Plaintiff’s Complaint is nothing more than legal conclusions lacking any factual support whatsoever that could raise Plaintiff’s right to relief above a speculative level. As a result, the Complaint should be dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6). In order to survive a Rule 12(b)(6) motion to dismiss, a Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (emphasis added); see also Twombly, 550 U.S. at 555. Under Twombly and Iqbal, a plaintiff must plead facts to support a reasonable inference that there has been some wrongdoing. Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 570. To properly state a claim, a plaintiff must allege a factual basis for each element of each claim that he or she asserts, setting forth “enough factual matter (taken as true) to suggest [each] required element.” See Watts v. Fla. Intern. Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). Pleading deficiencies that warrant dismissal Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 5 of 8 6 include (1) “confused and rambling narrative of charges and conclusions,” (2) “untidy assortment of claims that are neither plainly nor concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and personal comments,” and (3) failing to allege “with even modest particularity the dates and places of the alleged transactions.” Poblete v. Goldberg, 680 F. Supp. 2d 18 (D.D.C. Dec. 29, 2009) (dismissing with prejudice the complaint where the complaint was comprised of confusing legal theories and insufficient factual pleadings). Here, Plaintiff’s Complaint is entirely deficient. Plaintiff’s Complaint consists almost exclusively of incomprehensible allegations. She fails to allege the elements of the causes of actions. See generally Compl. These deficiencies alone warrant dismissal. See Poblete, 680 F. Supp. 2d 18 (D.D.C. Dec. 29, 2009). A claim for relief must contain more than labels and conclusions. Twombly, 550 U.S. at 555. Simply concluding that a defendant has harmed a plaintiff, as Plaintiff has asserted here, completely fails to meet minimum pleading standards. See Iqbal, 129 S. Ct. at 1949. As such, the Complaint fails to place Defendant on reasonable notice of the substance of the dispute and should be dismissed. CONCLUSION WHEREFORE, for the above and foregoing reasons, this Court should grant Defendant’s Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to set forth facts showing that Plaintiffs are entitled to Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 6 of 8 7 relief and failure to state a claim upon which relief may be granted. Defendant also requests such other and further relief as the Court deems just and appropriate. Respectfully submitted, this 28th day of October, 2016. /s/ Jarrod S. Mendel Jarrod S. Mendel Georgia Bar No. 435188 McGuireWoods LLP 1230 Peachtree Street, NE Promenade II, Suite 2100 Atlanta, Georgia 30309-3534 (404) 443-5713 (Telephone) (404) 443-5687(Facsimile) jmendel@mcguirewoods.com Attorney for Bank of America, N.A. Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 7 of 8 8 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION LORETTA WRIGHT, ) ) Plaintiff, ) ) v. ) CASE NO.: ) 4:16-CV- 00087-CDL-MSH BANK OF AMERICA, N.A., ) ) Defendant. ) CERTIFICATE OF SERVICE, FONT AND MARGINS I hereby certify that on October 28, 2016 I filed the foregoing Motion to Dismiss and Incorporated Memorandum of Law in Support with the Clerk of the Court using the CM/ECF system and mailed a true copy of same via First-Class Mail, postage prepaid, addressed to: Loretta Wright 2226 Mahan Drive Columbus, GA 31909 Pro Se Plaintiff I further certify that I prepared this document in 14 point Times New Roman font and complied with the margin and type requirements of this Court. /s/ Jarrod S. Mendel Jarrod S. Mendel Case 4:16-cv-00087-CDL-MSH Document 20 Filed 10/28/16 Page 8 of 8