Hawkins et al v. Bank of America NA

Filing 27

ORDER granting 15 Motion to Dismiss with leave to amend; denying without prejudice 18 Motion to file an amended class-action complaint. The Court will withhold entry of Judgment. Plaintiffs may file another proposed amended complaint that atte mpts to satisfy Rule 9 on their ADTPA claim, and that omits class allegations, by 7 February 2014. If no such proposed pleading is filed, or if one is filed that does not pass muster, then the Court will enter judgment dismissing the case without prejudice. Signed by Judge D. P. Marshall Jr. on 1/22/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

TONY HAWKINS and SHEILA
HAWKINS

v.

PLAINTIFFS

No. 3:13-cv-210-DPM

BANK OF AMERICANA

DEFENDANT

ORDER
Motion to dismiss, NQ 15, is granted with leave to amend. The motion
to file an amended class-action complaint, NQ 18, is denied without prejudice.
The Hawkinses have abandoned their gross-negligence claim from their
original complaint. And their claim under the Arkansas Deceptive Trade
Practices Act is insufficiently pleaded. As Bank of America points out, the
heightened requirement of Federal Rule of Civil Procedure 9(b) applies. "The
claim must identify who, what, where, when, and how[,]" United States ex rel.
Costner v. United States, 317 F.3d 883, 888 (8th Cir. 2003), and "the time,

place[,] and contents of [the] false representations[.]" Abels v. Farmers
Commodities Corp., 259 F.3d 910,920 (8th Cir. 2001). None of these particulars

are present.

The proposed class allegations are futile: by their very nature, the
ADTPA claim for each homeowner will rise and fall based on the details of
the alleged misrepresentations to, and the alleged reliance of, the individual.

In reSt. Jude Medical, Inc., 522 F.3d 836,838 (8th Cir. 2008). Common issues
would not predominate. And the Court sees no claim under the Home
Affordable Modification Program. Reitz v. Nationstar Mortgage, LLC, 2013 WL
3282875, at *7 (E. D. Mo. 27 June 2013).
The Court will withhold entry of judgment. The Hawkinses may file
another proposed amended complaint that attempts to satisfy Rule 9 on their
ADTPA claim, and that omits class allegations, by 7 February 2014. If no such
proposed pleading is filed, or if one is filed that does not pass muster, then the
Court will enter judgment dismissing the case without prejudice.
So Ordered.

D.P. Marshall Jr.
United States District Judge
22 January 2014

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