McLaughlin et al v. Bank of America, N.A.
ORDER granting 7 Motion for More Definite Statement. McLaughlins shall file an amended pleading within 30 days. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott McLaughlin and
Civil No. 12-cv-386-SM
Bank of America, N.A.
O R D E R
Plaintiffs, Scott and Nancy McLaughlin (collectively
“McLaughlins”), sued Bank of America, N.A. (“Bank”) in the New
Hampshire Superior Court located in Cheshire County.
Petition for Relief (doc. no. 4).
Defendant removed the action
to this court on the basis of diversity jurisdiction.
Notice of Removal (doc. no. 1).
On November 1, 2012, the Bank filed “Defendant’s Motion for
a More Definite Statement” (doc. no. 7) and a supporting
memorandum (doc. no. 7-1), pursuant to Rule 12(e) of the Federal
Rules of Civil Procedure, seeking an order that the McLaughlins
“re-plead their Petition for Relief to make clear the legal
causes of action to which Bank of America must respond, and the
facts allegedly supporting each legal cause of action.”
Plaintiffs have not objected or otherwise responded to the
Rule 12(e) Standard
“A party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is
so vague and ambiguous that the party cannot reasonably prepare
Fed. R. Civ. P. 12(e).
“‘A more definite
statement will be required only when the pleading is so vague or
ambiguous that the opposing party cannot respond, even with a
simple denial, in good faith or without prejudice to himself.’”
Guilbeault v. R.J. Reynolds Tobacco Co., 1998 WL 919117, *1
(D.R.I. July 24, 1998) (quoting Delta Educ., Inc. v. Langlois,
719 F. Supp. 42, 50 (D.N.H. 1989)).
“Since Rule 12(e) motions
are designed to strike at unintelligibility, rather than at lack
of detail in the complaint[,] a Rule 12(e) motion properly is
granted only when a party is unable to determine the issues he
Guilbeault, 1998 WL 919117, at *1 (internal
quotation marks and citation omitted).
Plaintiffs complain that in March 2009, “Countrywide,” the
financial institution that apparently then serviced the mortgage
Because plaintiffs are appearing pro se in this matter,
their pleadings have been construed generously. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
on plaintiffs’ residence, among other things, effected “payment
reversals” of eight timely mortgage payments that plaintiffs had
already made, misapplied additional timely mortgage payments so
that the plaintiffs’ account did not reflect that payments were
current, and made negative reports to credit reporting agencies.
Plaintiffs complained to Countrywide in spring 2009.
investigating plaintiffs’ complaints, Countrywide, in April
2009, determined that an error had been made in calculation of
plaintiffs’ interest rates after an April 2008 modification of
the terms of the loan, resulting in the mistaken “payment
Countrywide advised plaintiffs that it would
correct the problem.
Between April 2009 and August 2009, plaintiffs received
near daily collection calls concerning the mortgage and
Countrywide’s intent to foreclose.
plaintiffs wrote to Countrywide.
On August 19, 2009,
The Bank responded, stating
that it had taken steps to correct the problems resulting from
the April 2008 error, including halting foreclosure proceedings,
waiving late charges and other fees, advising the credit
reporting agencies that plaintiffs’ mortgage payments had been
current since July 2008, and coding the plaintiffs’ account to
stop collection activity.
After he received a bill that did not reflect any
correction to the past due balance that had been showing on the
account, Scott McLaughlin notified the Bank that the matter had
not been resolved to his satisfaction.
The Bank took further
steps to address the problem, including marking the account
current as of October 1, 2009.
It appears that plaintiffs stopped making mortgage payments
in or around November 2009.
The Bank initiated foreclosure
proceedings after offering the plaintiffs the opportunity to
modify their mortgage agreement.
Plaintiffs report that in
March 2010, the Bank installed a lock box on the front door of
their residence, and items were missing from their home.
July 2010, the Bank notified plaintiffs that it intended to
initiate foreclosure proceedings.
III. Ambiguity and Vagueness in Petition for Relief
A generous review of the petition for relief and the
attachments thereto reveals that plaintiffs claim that apparent
errors by both Countrywide and Bank of America have harmed them.
The petition, however, does not state what cause of action the
plaintiffs are invoking in order to obtain relief, and does not
clarify whether the actionable conduct was conduct of Bank of
America, N.A., Countrywide, or another entity related to the
Oblique references to “breach” or “fraud,” without more,
are insufficient to adequately place the Bank on notice as to
what legal action plaintiffs assert.
have not identified what specific acts or omissions attributable
to the defendant demonstrate that they are entitled to relief.
Again, this impairs defendant’s ability to answer or otherwise
defend this matter.
Accordingly, relief under Rule 12(e) is
See Teng v. Shore Club Hotel Condominiums, No. 11-
cv-281-JL, *11 (D.N.H. Apr. 12, 2012); see also L’Esperance v.
HSBC Consumer Lending, Inc., No. 11-cv-555-LM, 2012 WL 2122164,
*10 (D.N.H. June 12, 2012) (“Justice demands that plaintiffs
have a fair opportunity to state legitimate claims against those
they think have wronged them, but justice also requires some
degree of protection for defendants from plaintiffs who are
unable to do so.”).
In its motion for a more definite statement, defendant
states that plaintiffs have failed to identify any wrongful
conduct of Bank of America, N.A., as opposed to Countrywide,
upon which their claims are based. Plaintiffs are advised to
consider which party or parties to name as defendant[s] in this
action, in connection with filing an amended complaint. See,
e.g., Gorham-DiMaggio v. Countrywide Home Loans, Inc.,
CIV.1:08CV019LEK/RFT, 2009 WL 1748743, *10 (N.D.N.Y. June 19,
2009) (denying motion to add “Bank of America” as a defendant to
action against Countrywide as loan servicer), aff’d, 421 F.
App’x 97 (2d Cir. 2011).
Defendant’s motion for a more particular statement (doc.
no. 7) is GRANTED.
Within thirty days of the date of this
order, the McLaughlins shall file an amended pleading stating
with particularity what causes of action plaintiffs intend to
assert in this action, and what specific facts alleged by
plaintiffs give rise to defendant’s liability under the causes
of action asserted.
If plaintiffs fail to comply with the terms
of this order, upon motion, the court may recommend that the
complaint be stricken, pursuant to Rule 12(e), or that other
appropriate relief be granted to defendants.
United States Magistrate Judge
December 5, 2012
Scott McLaughlin, pro se
Nancy McLaughlin, pro se
Jennifer Turco Beaudet, Esq.
Thomas J. Pappas, Esq.