United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
JOHN
E. OTT, CHIEF UNITED STATES MAGISTRATE JUDGE
The
court has before it the April 10, 2019 motion to dismiss
filed by Defendant Mortgage Electronic Registration System,
Inc. (“MERS”). (Doc. 26). Despite being given the
opportunity to do so, (see docs. 19, 27), Plaintiff
did not file an opposition to the motion. For the reasons
that follow, the court[1] finds that the motion is due to be
granted.
I.
PROCEDURAL HISTORY
Plaintiff
Jan Goodreau filed this action in the Circuit Court of
Jefferson County, Alabama, asserting fourteen separate claims
against Defendants U.S. Bank Trust National Association, BSI
Financial Services and MERS: negligence, wantonness, unjust
enrichment, wrongful foreclosure, slander of title, breach of
contract, fraud, false light, defamation/libel/slander,
violation of the Truth in Lending Act, violation of the Real
Estate Settlement Procedures Act, violation of the Fair
Credit Reporting Act, violation of the Fair Debt Collection
Practices Act, and a claim for declaratory relief. (Doc. 1-1
at 3-22). Defendants removed the action to this court and
then moved to dismiss all of the claims contained in the
complaint.[2] (Docs. 1, 6, 8).
In
response to the motions to dismiss, Goodreau filed a motion
for leave to file an amended complaint, noting the different
pleading standards in federal and state court. (Docs. 15,
16). The court granted Goodreau's motion to file an
amended complaint, (doc. 17), and, after an extension, Perry
filed her amended complaint on March 31, 2019.[3] (Doc. 23). The
amended complaint contains a more detailed set of factual
allegations and specifies under the heading for each count to
which defendant the count is directed. (Id. at
8-33). None of the counts are identified at being asserted
against MERS. (Id.).
II.
STANDARD OF REVIEW
Defendant
has moved for dismissal pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which authorizes the
dismissal of all or some of the claims in a complaint if the
allegations fail to state a claim upon which relief can be
granted. Federal Rule of Civil Procedure 8(a)(2) requires
only “a short and plain statement of the claim showing
that the pleader is entitled to relief, ” in order to
“give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). The court assumes the
factual allegations in the complaint are true and gives the
plaintiff the benefit of all reasonable factual inferences.
Hazewood v. Foundation Financial Group, LLC, 551
F.3d 1223, 1224 (11th Cir. 2008). However, “courts
‘are not bound to accept as true a legal conclusion
couched as a factual allegation.'” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)); see also Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (“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.”). Nor is it proper to assume that a
plaintiff can prove facts he has not alleged or that the
defendants have violated the law in ways that have not been
alleged. Twombly, 550 U.S. at 563 n.8 (citing
Associated Gen. Contractors of Cal., Inc. v.
Carpenters, 459 U.S. 519, 526 (1983)).
“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.” Id., 550 U.S. at 555 (citations,
brackets, and internal quotation marks omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level. . . .” Id.
Thus, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face, '” i.e., its
“factual content ... allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(citations omitted).
III.
DISCUSSION
MERS
asserts that because there are no claims identified as being
asserted against it and because there are no allegations of
wrongdoing against MERS in the amended complaint, the amended
complaint is due to be dismissed against it. (Doc. 26 at
2-5). Additionally, MERS argues that because Plaintiff has
already had one chance to amend her complaint (and with the
benefit of the then-pending motions to dismiss), Plaintiff
should not be premised any further amendments. The court
agrees with MERS in both respects.
First,
the court again notes that Plaintiff did not respond to the
motion to dismiss filed by MERS. The briefing schedule was
clearly delineated in the initial order (doc. 19), and the
court specifically reminded the parties to refer to the
briefing schedule in the initial order after the motion was
filed, (doc. 27). After the deadline for Plaintiff's
opposition passed, MERS filed a notice of non-response to the
motion to dismiss. (Doc. 33). Plaintiff has still failed to
respond. The motion is due to be granted on this basis alone.
Coal. for the Abolition of Marijuana Prohibition v. City
of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)
(“failure to brief and argue [an] issue during the
proceedings before [a] district court is ground for finding
that the issue has been abandoned.”).
Even if
the court were to look at the merits, the acts that form the
basis of the amended complaint are based upon the servicing
and foreclosure of the mortgage loan. (See Doc. 26).
There are no allegations of any sort of involvement of MERS
with any of the actions alleged. This fact is confirmed by
the lack specific assignment of any the eighteen counts
alleged in the amended complaint against MERS. Additionally,
in light of the forgoing, the court will not allow further
amendment with regard to Defendant MERS.
IV.
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