United States District Court, N.D. Alabama, Middle Division
VIRGINIA EMERSON HOPKINS, District Judge.
The case comes before the court on the defendant's Motion to Dismiss (doc. 15) and the plaintiff's Motion to Allow Second Amended Complaint (doc. 22). For the reasons stated herein, the motion to dismiss will be GRANTED, and the motion to amend the complaint will be DENIED.
I. INTRODUCTION AND PROCEDURAL HISTORY
This civil action was originally filed by the plaintiff, Kristin Cantrell, in the Circuit Court of Etowah County, Alabama. (Doc. 1-1 at 3). The original complaint alleged that defendant JPMorgan Chase Bank, N.A. (identified in the complaint as J.P. Morgan "d/b/a Chase" and hereinafter referred to as "Chase"), the holder of the Note and Mortgage on the plaintiff's home, and various fictitiously named defendants, were liable for wrongful foreclosure (Count One) and fraud (Count Two). (Doc. 1-1 at 3). The case was removed to this court on April 11, 2014. (Doc. 1).
On April 15, 2014, Chase moved to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief may be granted. (Doc. 6). The court's uniform initial order, entered in this case on April 15, 2014, provides that any response to that motion was due no later than April 29, 2014. (Doc. 4 at 23) ("The opponent's responsive brief shall be filed no later than fourteen (14) calendar days thereafter."). The plaintiff filed no response by that deadline.
On May 1, 2014, two days after her response to the motion to dismiss was due, the plaintiff moved the court to allow her to amend the style of her complaint to properly name the defendant. (Doc. 7). The unopposed motion was granted by the court that same day. Also that same day, the plaintiff filed an unopposed motion for a 7 day extension of time to respond to the motion to dismiss, because "[p]laintiff's [c]ounsel has had an unusually heavy workload for the prior 14 days." (Docs. 8, 9). Granting the relief the plaintiff requested would have made her deadline May 6, 2014-7 days from her original deadline of April 29, 2014. Instead of the relief she requested, the court granted the motion and gave the plaintiff until May 9, 2014, to respond.
On May 9, 2014, the plaintiff moved the court to allow her to file an amended complaint which "adds more specificity to the claims and adds a new claim of Failure to Grant Loan Modification." (Doc. 10). That same day, the plaintiff also responded to the then pending motion to dismiss. (Doc. 11). Attached to her response is the plaintiff's affidavit. (Doc. 11-1 at 1-3). Attached to the affidavit are three exhibits identified by the affidavit as:
- a transcript of a recording of a September 13, 2013, phone conversation between the plaintiff and a representative (or representatives) of Chase (doc. 11-1 at 4-26);
- a June 5, 2013, letter from Regions Bank (doc. 11-1 at 27); and
- the 2013 payment history, dated sometime in November of 2013,  prepared by
Chase, for the loan on the plaintiff's residence (doc. 11-1 at 28-33). On May 12, 2014, the defendant responded to the plaintiff's motion to amend, stating that it did not oppose the motion and agreeing to its motion to dismiss being termed. (Doc. 12).
The plaintiff filed her amended complaint on May 13, 2014. (Doc. 13). In addition to again alleging wrongful foreclosure (Count One) and fraud (Count Two), it added a count for "Failure to Grant Loan Modification" (Count Three). On June 3, 2014, the defendant filed a new motion to dismiss which remains pending. (Doc. 15). Any response to that motion was due no later than June 17, 2014.
On June 18, 2014, one day after her response to the motion to dismiss was due, the plaintiff filed an unopposed motion to extend her time to respond to the motion by 14 days "due to health of [p]laintiff's counsel." (Doc. 17). The motion for an extension also stated that "[t]he Motion to Dismiss, consisting of 23 pages and four exhibits, raises complex issues which require a significant response." (Doc. 17 at 1). The motion was granted that same day, making the plaintiff's new response deadline July 1, 2014. The plaintiff failed to file anything by that deadline.
On July 9, 2014, the defendant filed its reply to the motion to dismiss and noted that the plaintiff had filed no response to the motion. (Doc. 18 at 2). On July 10, 2014, 9 days after her response was due, the plaintiff filed a contested motion for an additional 11 days to respond to the pending motion to dismiss. (Doc. 20). In that motion the plaintiff stated:
Counsel was without his primary paralegal from June 27 - July 6, 2014.
Counsel was overwhelmed with the case of Oliver v. Aetna Life Ins. Co.[, ] et al, 4:13-cv-1947-VEH during the week of June 30 - July 3, 2014.
Counsel continues to recuperate from a stroke he suffered on 5/18/14. (Doc. 20 at 1). On July 10, 2014, the court, by text order, granted the motion for an extension, and gave the plaintiff until July 14, 2014, to respond to the motion.
On July 11, 2014, the plaintiff filed a response to the pending motion to dismiss. (Doc. 23). Attached to that response are the same exhibits that were attached to her response to the first motion to dismiss. (Doc. 23-2). She also attached an August 7, 2013, letter, apparently written by Mark Cantrell (her husband at the time), to Chase. (Doc. 23-1). Importantly, in this response, she states that the payment history "provided by Chase" shows "the loan was purchased by a third party prior to the foreclosure on 7/23/13. [Doc. 23-2 at 28-33] shows a payment of $196, 508.29 indicating that the loan had been paid on the same date. An additional $4, 991.48 was paid as a partial settlement." (Doc. 23 at 2).
On July 10, 2014, the plaintiff filed a contested "Motion to Allow Second Amended Complaint" which remains pending. (Doc. 22). She seeks to amend to add allegations that Chase was in fact "not the owner of the loan and mortgage... on the day of foreclosure." (Doc. 22-1 at 1). She contends that "[p]ayment records produced by Chase in a related case show that Chase did not own the note and mortgage on 9/23/13 the date of the foreclosure. The note and mortgage were paid off on 7/23/13 apparently by Fannie Mae." (Doc. 22-1 at 1). Neither the motion, nor the proposed amended complaint attached thereto, attaches the payment records. But each are clearly referencing the documents the plaintiff had previously filed into the record as documents 11-1 at 28-33 and 23-3 at 28-33.
A. Rule 12(b)(6) Dismissal Standard
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.R.Civ.P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). The Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 8(a) (setting forth general pleading requirements for a complaint including providing "a short and plain statement of the claim showing that the pleader is entitled to relief").
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at 103). However, at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S.Ct. at 1969.
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (emphasis added). "Under Twombly 's construction of Rule 8... [a plaintiff's] complaint [must] nudge [any] claims'... across the line from conceivable to plausible.' Ibid. " Iqbal, 556 U.S. at 680, 129 S.Ct. at 1950-51.
A claim is plausible on its face "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 678, 129 S.Ct. at 1949. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a ...