Susan Mueller v. Specialized Loan Servicing

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cv-00022-NKM-JCH Copies to all parties and the district court/agency. [999949514]. Mailed to: Susan Mueller. [16-1389]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1389

SUSAN C. MUELLER,
Plaintiff – Appellant,
v.
SPECIALIZED LOAN SERVICING, LLC, individually and as
servicing agent for HSBC Bank USA, National Association, as
trustee for the holders of the Deutsche Alt-A Securities,
Inc.
Mortgage
Loan
Trust,
Mortgage
Pass-Through
Certificates Series 2007-0A4 c/o BAC, M/C: CA6-914-01-43,
Defendant – Appellee,
and
BANK OF AMERICA, N.A.,
Defendant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.
Norman K. Moon,
Senior District Judge. (3:15-cv-00022-NKM-JCH)

Submitted:

September 30, 2016

Decided:

October 18, 2016

Before TRAXLER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

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Susan C. Mueller, Appellant Pro Se. Jason E. Manning, S. Mohsin
Reza, TROUTMAN SANDERS, LLP, Virginia Beach, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Susan C. Mueller appeals from the district court’s order
granting Specialized Loan Servicing’s (“SLS”) motion to dismiss
for failure to state a claim.

Finding that we lack jurisdiction

over this appeal, we dismiss.
An order dismissing a complaint without prejudice is not an
appealable final order if “the plaintiff could save [her] action
by

merely

amending

[her]

complaint.”

Domino

Sugar

Corp.

v.

Sugar Workers Local Union 392, 10 F.3d 1064, 1066–67 (4th Cir.
1993). In Domino Sugar, we held that if “the grounds of the
dismissal make clear that no amendment could cure the defects in
the

plaintiff's

case,

the

order

dismissing

final in fact” and therefore appealable.

the

complaint

is

Id. at 1066 (quoting

Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463
(7th Cir. 1988)).

Where a district court grants a motion to

dismiss for failure to plead sufficient facts in the complaint
without

prejudice,

because

the

this

plaintiff

pleading deficiency.

court

could

lacks

amend

appellate

jurisdiction

complaint

to

the

cure

the

Goode v. Cent. VA Legal Aid Soc’y, 807

F.3d 619, 624 (4th Cir. 2015).
Here, it is somewhat unclear whether the claims against SLS
were dismissed with or without prejudice.

In general, absent a

contrary intention, a dismissal for failure to state a claim is
with prejudice.

See Federated Dep’t Stores, Inc. v. Moitie, 452
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U.S. 394, 399 n.3 (1981) (“The dismissal for failure to state a
claim

under

Federal

Rule

of

Civil

Procedure

judgment on the merits.”); Carter v.

12(b)(6)

is

a

Norfolk Cmty. Hosp. Ass’n,

761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal
under

Rule

12(b)(6)

is,

of

course,

with

prejudice

unless

specifically orders dismissal without prejudice.”).
district

court

did

not

explicitly

state

whether

it

While the
the

claims

against SLS were with or without prejudice, the fact that the
court

did

state

that

the

contract

claim

(against

another

Defendant) was dismissed with prejudice tends to show that the
other

claims

were

dismissed

differently.

In

addition,

on

appeal, Mueller asserts that her claims against SLS should have
been

dismissed

without

prejudice,

and

SLS

contends

claims were, in fact, dismissed without prejudice.
the

district

allegations

of

court’s
fraud

order
or

makes

clear

intentional

that

that

the

Moreover,

more

detailed

of

emotional

infliction

distress could potentially state a claim.
Accordingly,

we

construe

the

against SLS to be without prejudice.
appeal for lack of jurisdiction.

dismissal

of

the

claims

As such, we dismiss the

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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