Wright v. Bank of America

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiff's Amended Complaint

M.D. Ga.March 2, 2017

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 AMENDED COMPLAINT COME NOW Defendant Bank of America, N.A. (“BANA”) and “Deutsche Bank National Trust Company” (“Deutsche”)1 (collectively, “Defendants”) by and through undersigned counsel, and file this Motion to Dismiss the Amended Complaint (the “Amended Complaint” of “Am. Compl.”) filed by Plaintiff Loretta Wright (“Plaintiff”) pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6) for failure to state a claim upon which relief may be granted. In support thereof, Defendants provide 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 1 Plaintiff may be attempting to name the foreclosure sale purchaser Deutsche Bank National Trust Company, As Trustee for the Vendee Mortgage Trust 1995-1. There is no record of service of process on this new party, and Plaintiff’s Amended Complaint references her inability to perfect service. (Am. Compl. ¶ 2). 2 The “facts” as alleged in this Complaint are taken as true for purposes of this Motion only. Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 1 of 9 2 property formerly owned by the Plaintiff located at 2226 Mahan Drive, Columbus, GA 31907 (the “Property”). (Am. Compl. ¶ 1). Like her original complaint, Plaintiff’s Amended Complaint contains a paucity of any facts or description of the basis for her claims against Defendants. In the six numbered paragraphs of the Amended Complaint, Plaintiff makes vastly different allegations against Defendants. First, she alleges that her Security Deed violates the Constitution of the United States and violates the Civil Rights Act of 1964. No facts are presented as to how either of violations occurred. (Am. Compl. ¶ 4). Next, she alleges that BANA violated unspecified terms of the Security Deed by refusing her purported offers to pay arrears over a period of time. (Am. Compl. ¶ 4). She also alleges that BANA “reneged” on an unspecified TARP agreement, and refused short sales in violation of RESPA and TILA. (Am. Compl. ¶ 4). Additionally, Plaintiff claims that the Security Deed is a contract of adhesion because it favors the grantee and strips her of rights and bargaining power. (Am. Compl. ¶ 5). Despite making this contractual claim, Plaintiff also alleges that she has no contract with the Defendants. (Am. Compl. ¶ 6, Ex. C). The Deed Under Power Plaintiff attached to her Amended Complaint as Exhibit A sets forth the relationship of the parties. (Doc. 32-1). Plaintiff (then named Loretta Alexander) granted the Security Deed to the Secretary of Veterans Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 2 of 9 3 Affairs (the “VA”) in 1994. (Doc. 32-1, p. 1). Subsequently the Security Deed was transferred to Deutsche who foreclosed after her default. (Id.) BANA was the loan servicer and operated as the attorney-in-fact for Deutsche. (Id. at p. 3). That is the extent of the allegations contained in the Amended Complaint. 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 Defendants - 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. ARGUMENT AND CITATION OF AUTHORITIES A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for “failure to state a claim upon which relief can be granted.” In ruling on the pending motion to dismiss, all of the well-pleaded factual allegations in Plaintiff’s Amended Complaint must be accepted as true and construed in the light most favorable to Plaintiff. See Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1037 (11th Cir. 2008). However, “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). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 3 of 9 4 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 to 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) (quotation 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). B. Plaintiff’s Complaint Does Not Meet The Pleading Standards. “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.” Iqbal, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at 555. Under Twombly and Iqbal, a plaintiff is required to 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. By simply concluding that Defendant has somehow harmed him as Plaintiff does here, Plaintiff fails to meet Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 4 of 9 5 even minimum pleading standards. See Iqbal, 129 S. Ct. at 1949. 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 must provide "'the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (quoting United States v. Baxter Int’l, Inc., 345 F.3d 866, 881 (11th Cir. 2003)). Rule 8 "does not unlock the doors. . . for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S. Ct. at 1950. Instead, complaints must "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 5 of 9 6 theory." Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007). Complaints filed by pro se litigants must be liberally construed. Strickland v. A Mortgage Co. (In re Strickland), 179 B.R. 979, 980 (Bankr. N.D. Ga. 1995). However, pro se claimants 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) (quoting Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986)). "[E]ven in pro se cases, the Court is not permitted to serve as de facto counsel to a party or to rewrite an otherwise deficient pleading." Standifer v. SEC, 542 F. Supp. 2d 1312, 1316 (N.D. Ga. 2008) (italics removed). Plaintiff’s Amended Complaint does not cure the defects present in her initial pleading (nor her prior attempt to amend the complaint (Doc. 30)). The original Complaint appeared to be a form Plaintiff obtained elsewhere and then filled out with two sentences of purported facts. After BANA moved to dismiss, this Court granted Plaintiff leave to amend. Doc. 25, pp. 2-3. Specifically, the Court ordered Plaintiff “to file an amended complaint that sets forth exactly what claims [she] is pursuing against the Bank, along with basic factual allegations that support each claim.” Doc. 25, p. 3. Plaintiff has not followed the Court’s instructions. Instead, the Amended Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 6 of 9 7 Complaint is a short, six paragraph document that basically contains the same statements as the original complaint. Compare Doc. 1 with Doc. 32. For that reason, the Amended Complaint should be dismissed for the same reasons the original complaint was deficient - failure to articulate a short and plain statement of the claims as required under Rule 8(a)(2). Additionally, while the Court allowed Plaintiff an opportunity to amend once, it should not grant her leave to do so again. See Harris v. Ostrout, 65 F.3d 912, 915 n. 3 (11th Cir.1995) (upholding refusal to allow claimant to re-plead without showing of “extraordinary circumstances” after third amended complaint failed to cure earlier deficiencies). 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 Plaintiff is entitled to relief and failure to state a claim upon which relief may be granted. Defendants also request such other and further relief as the Court deems just and appropriate. Respectfully submitted, this 2nd day of March, 2017. /s/ Jarrod S. Mendel Jarrod S. Mendel Georgia Bar No. 435188 McGuireWoods LLP 1230 Peachtree Street, NE Promenade II, Suite 2100 Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 7 of 9 8 Atlanta, Georgia 30309-3534 (404) 443-5713 (Telephone) (404) 443-5687(Facsimile) jmendel@mcguirewoods.com Attorney for Defendants Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 8 of 9 9 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 March 2, 2017 I filed the foregoing Motion to Dismiss Plaintiff’s Amended Complaint 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 2231 Mahan Drive Columbus, GA 31907 Pro Se Plaintiff /s/ Jarrod S. Mendel Jarrod S. Mendel Case 4:16-cv-00087-CDL Document 34 Filed 03/02/17 Page 9 of 9