United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER, UNITED STATES MAGISTRATE JUDGE
matter is pending before the Court on Defendants' Motion
to Dismiss (Doc. 30) and Plaintiff's Response (Doc.
Pursuant to 28 U.S.C. § 636(b) (1) this case was
referred to the undersigned United States Magistrate Judge
for consideration and disposition or recommendation on all
pretrial matters. (Doc. 3).
who is proceeding pro se, filed this action for
breach of contract on May 23, 2017. (Doc. 1). The Defendants
filed a Motion to Dismiss, or, in the Alternative Motion for
More Definite Statement. (Doc. 7). Thereafter, the Court
denied Defendant's Motion to Dismiss but granted
Defendant's Motion for More Definite Statement and
referred this matter to the Pro Se Assistance Program. (Doc.
24). The Court ordered that Plaintiff file an amended
complaint on or before December 8, 2017. (Tr. 27). On
November 13, 2017, Plaintiff filed an amended complaint. (Tr.
29). Thereafter, Defendant filed a Motion to Dismiss (Doc.
30) to which Plaintiff filed a response. (Doc. 34).
before the Court is Defendants' Motion to Dismiss
pursuant to 12(b)(6) of the Federal Rules of Civil Procedure
based upon the Plaintiff's failure to state a claim upon
which relief can be granted. (Doc. 30). To survive a motion
to dismiss, a complaint need not contain “detailed
factual allegations.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Instead, the
complaint must contain “only enough facts to state a
claim for relief that is plausible on its face.”
Twombly, 550 U.S. at 570. With these standards in
mind, the Court will address Defendants' Motion to
Discussion and Analysis
Plaintiff proceeds pro se, the court will liberally
construe the allegations of his complaint. See Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). In the
First Amended Complaint Plaintiff alleges Defendants breached
its contract with him by charging him an interest rate of
11.292% when the mortgage specifies a rate of 11.75% is to be
charged. (Doc. 29 pp. 2-3). “[To recover on a
breach-of-contract claim, a party must establish: (1) the
existence of a valid contract binding the parties, (2) the
plaintiff's performance under the contract; (3) the
defendant's nonperformance; and (4) damages.'”
Harp Law, LLC v. LexisNexis, 196 So.3d 1219, 1224
(Ala. Civ. App. 2015). (Citation omitted.)
argue that Plaintiff's breach of contract claim fails
because Plaintiff alleges that the Defendants charged him a
lower rate of interest than was specified in the mortgage;
and therefore, he can not prove damages. (Doc. 29 at pp.
7-8). Further, Defendants argue that Plaintiff's interest
rate under the contract is 11.292% while his annual
percentage rate (“APR”) is 11. 75%. (Doc. 30 at
p. 6; 30-1 at p.1). Specifically, the mortgage Note states as
PROMISE TO PAY: In return for a loan that Borrower
received, Borrower promises to pay to the order of Lender the
Principal amount shown above, plus interest on the unpaid
Principal PROMISE TO PAY balance from the Date
Charges Begin shown above at the rate of interest of
11.292% per annum.
(Doc. 30-1 at p.1). (Emphasis added). Thus, the Court
concludes that Plaintiff's breach of contract claim fails
because he can not prove damages, which is an element of the
prima facie case, since the actual interest rate charged
(11.292%) is less than what Plaintiff alleges he was due to
be charged (11.75%). See, Harp Law, 196 So.3d at
Accordingly, it is the RECOMMENDATION of the Magistrate Judge
that Defendants' Motion to Dismiss (Doc. 30) be and is
hereby GRANTED and that Plaintiff's Motion for a Retrial
(Doc. 32) be DENIED as Moot.
further ORDERED that the Plaintiff file any objections to
this Recommendation on or before January 3,
2018. Any objections filed must specifically
identify the findings in the Magistrate Judge's
Recommendation to which the party is objecting. Frivolous,
conclusive or general objections will not be considered by
the District Court. The parties are advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar
the party from attacking on appeal factual findings in the
report accepted or adopted by the District Court except upon
grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.
1982); see also Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981, ...