Michael Demond Stubbs v. Bank of America Corporation et al

Filing 53

ORDER ADOPTING 45 REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART re 39 MOTION to Dismiss Based upon Renewed Motion to Dismiss. Signed by Judge Sue L. Robinson on 7/29/2011. (lid) Modified on 8/1/2011 (fms).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

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Plaintiff,
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) Civ. No. 08-108-SLR
v.
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BANK OF AMERICA CORPORATION, )
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et aI.,
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Defendants.

MICHAEL DEMOND STUBBS,

ORDER

At Wilmington

this~qtt-.. day of

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,2011, having reviewed the Report

and Recommendation issued on Februa((Y 2;,2010 by United States Magistrate Judge
Leonard P. Stark,1 as well as the responses thereto, including the objections filed by
plaintiff and defendants Bank of America, N.A ("Bank of America") and Kenneth D.
Lewis ("Lewis") (together "defendants");
IT IS ORDERED that:
1. The Report and Recommendation (0.1. 45) is accepted and objections
overruled.
2. In defendants' objection, they assert that the mere listing of unlawful
conversion, wrongful dishonor of a financial instrument, and enforcement of the lien
fails to comply with the notice pleading standards required by Fed. R. Civ. P. 8(a)
pursuant to Fed. R. Civ. P. 12(b)(6). They further assert that the amended complaint is
devoid of a single factual allegation or claim pertaining to Lewis, other than identifying

1Judge Stark is now a United States District Judge.

him as the chief executive officer of Bank of America. The court agrees with the
conclusion that, when liberally construing the facts, as the court must for a pro se
plaintiff, and considering the attachments to the complaint, plaintiff satisfies the
pleading requirements of Fed. R. Civ. P. 8(a). As stated, correctly, in the Report and
Recommendation, some of plaintiffs claims are discernible and, although a substantial
portion of the collection of facts, rhetoric, and citations in the amended complaint are
legally irrelevant, enough factual allegations are presented that place defendants on
notice of the claims of unlawful conversion and wrongful dishonor of a financial
instrument. In addition, the Report and Recommendation correctly stated that
attachments to the amended complaint provide defendants notice of plaintiffs claim for
enforcement of the lien against Bank of America.
3. In his objection, plaintiff asserts that the claims of fraud, misrepresentation,
and interference with prospective economic advantage claim should not be dismissed.
The court agrees that, with regard to the fraud claim, the amended complaint fails to
meet the pleading requirements of Fed. R. Civ. P. 9(b). As stated, correctly, in the
Report and Recommendation, even when considering plaintiffs pro se status, the
amended complaint fails to allege a particular person who committed fraud or made a
misrepresentation. Nor does it allege a culpable state of mind on the part of alleged
perpetrators. The Report and Recommendation also correctly states that the litany of
the remaining claims fails to provide defendants with fair notice of the grounds upon
which they rest as required by Fed. R. Civ. P. 8(a).
4. Defendants' renewed motion to dismiss (0.1. 39) is granted in part and denied
in part. The motion is denied with respect to claims for unlawful conversion, wrongful

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dishonor of a financial instrument, and enforcement of a lien. All other claims are
dismissed.

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