Horace Dewayne Allen v. Bank of America Corporation, et al



Download PDF
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-3085 ___________ Horace Dwayne Allen, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Bank of America Corporation; * Merrill Lynch Bank USA; PHH * [UNPUBLISHED] Mortgage Corporation; Wells Fargo * & Company; Bank of America, * National Association, * * Appellees. * ___________ Submitted: May 22, 2012 Filed: June 5, 2012 ___________ Before WOLLMAN, BOWMAN, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Horace Dwayne Allen filed this civil action against the institutions purportedly involved in handling his mortgage while he was suing the builder of his Minnesota residence, which had been destroyed by mold. Defendants removed the action to federal court based on diversity jurisdiction. After multiple hearings, the district Appellate Case: 11-3085 Page: 1 Date Filed: 06/05/2012 Entry ID: 3918407 court1 denied Allen’s motion for leave to amend his complaint and granted defendants’ motion to dismiss the action. Allen appeals. Following careful review, we conclude that the district court did not abuse its discretion by denying the motion to amend as futile, see In re Medtronic, Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir. 2010) (denial of leave to amend is reviewed for abuse of discretion, but legal conclusions underlying determination of futility are reviewed de novo), because the conclusory assertions in Allen’s proposed amended complaint did not state a claim of fraud or intentional infliction of emotional distress under Minnesota law, see Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir. 2010) (fraud); Langeslag v. KYMN, Inc., 664 N.W.2d 860, 864 (Minn. 2003) (emotional distress), nor did they state a claim of harassment. Accordingly, dismissal with prejudice was proper. See Pet Quarters, Inc. v. Depository Trust & Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009) (Fed. R. Civ. P. 12(b)(6) dismissal with prejudice is not abuse of discretion when amendment would be futile). We also observe that a Federal Rule of Civil Procedure 60(b) motion cannot be filed in the first instance in this court. The judgment is affirmed. See 8th Cir. R. 47B. ______________________________ 1 The Honorable Michael J. Davis, Chief Judge, United States District Court for the District of Minnesota, adopting the report and recommendations of the Honorable Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota. -2- Appellate Case: 11-3085 Page: 2 Date Filed: 06/05/2012 Entry ID: 3918407

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?