Scarola v. Deutsche Bank National Trust Company

Filing 65

OPINION AND ORDER granting 60 Motion to Dismiss. See Opinion and Order for details. The 58 Second Amended Complaint is dismissed with prejudice. The Clerk is directed to enter judgment accordingly, terminate any previously scheduled deadlines and pending motions and close the file. Signed by Judge John E. Steele on 10/29/2012. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK SCAROLA,
Plaintiff,
vs.

Case No.

2:10-cv-677-FtM-29SPC

DEUTSCHE BANK NATIONAL TRUST COMPANY
AS TRUSTEE FOR THE HOLDERS OF GSAA
HOME EQUITY TRUST 2004-10 ASSETBACKED CERTIFICATES SERIES 2004-10,
COUNTRYWIDE MORTGAGE CORPORATION,
BANK OF AMERICA, and all of each of
their associated trust funds,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Deutsche Bank National
Trust Company, as Trustee’s Motion to Dismiss Second Amended
Complaint (Doc. #60) filed on March 1, 2012.
Response (Doc. #64) on May 2, 2012.

Plaintiff filed a

For the reasons set forth

below, the case will be dismissed.
I.
The Court will first address the procedural posture of this
case. On November 12, 2010, defendant Deutsche Bank National Trust
Company (Deutsche Bank), the only named defendant at the time,
removed plaintiff Frank Scarola’s (Scarola or plaintiff) Complaint
(Doc. #2) on the basis of diversity jurisdiction.

Defendant filed

a Motion to Dismiss (Doc. #12) and plaintiff filed an Amended
Complaint

(Doc.

#19)

adding

Countrywide

Mortgage

Corporation

(Countrywide) and Bank of America as co-defendants.

Finding

jurisdiction

of

insufficiently

pled

with

the

addition

the

defendants, the Court issued an Order to Show Cause (Doc. #20)
directing the parties to indicate why the case should not be
remanded for lack of subject-matter jurisdiction.

Defendant again

filed a Motion to Dismiss (Doc. #23) in response to the Amended
Complaint.
On May 3, 2011, the Court issued an Order (Doc. #32) taking no
further action on the Order to Show Cause based on plaintiff
indicating that he “agrees with defendant that federal jurisdiction
will continue to exist once the correct parties” are named, and
granting plaintiff an opportunity to seek leave to file a Second
Amended Complaint.
Order

and

on

plaintiff’s

Plaintiff sought clarification of the Court’s

July
motion,

12,

2011,

the

explaining

magistrate
in

judge

detail

granted

plaintiff’s

responsibilities and obligations regarding the filing of a proper
complaint pursuant to Fed. R. Civ. P. 8 and 10.

(Doc. #40.)

In

the same Order, the magistrate judge denied plaintiff’s motion for
leave to amend complaint (Doc. #38) because the proposed Amended
Complaint was insufficiently pled.

(Doc. #40.)

On July 27, 2011, plaintiff filed a “Motion for to Asecond
Ammended [sic] Complaint and Demand for a Trial By Jury” (Doc.
#41), which was construed to contain the proposed allegations for
a

Second

Amended

Complaint.

Defendant

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filed

a

Response

in

Opposition (Doc. #42).

On August 15, 2011, the magistrate judge

issued a Report and Recommendation (Doc. #43) finding diversity
jurisdiction was alleged and was present, but finding no viable
constitutional claim could be alleged, that the claim of fraud was
not pled with sufficient particularity, and that plaintiff’s claim
under Chapter 609 of the Florida Statutes would be futile.

Based

on these findings, the magistrate judge recommended that the case
be dismissed.

(Id.)

Plaintiff filed objections (Doc. #48) and on November 3, 2011,
the Court in an Opinion and Order (Doc. #49) adopted in part and
rejected in part the Report and Recommendation.

The Court adopted

the

may

findings

to

the

extent

that

demonstrate diversity jurisdiction.
of

dismissing

the

case,

the

plaintiff
(Doc. #49.)

Court

allowed

be

able

to

However, instead

plaintiff

another

opportunity to file a “Second Amended Complaint” because “plaintiff
may be able to more specifically plead a claim of civil fraud if
permitted leave to amend.”

(Id., pp. 4, 5.)

Plaintiff filed a

Motion for a Second Amended Complaint (Doc. #51).1

On December 6,

2011, the magistrate judge issued an Order (Doc. #54) interpreting
the motion as an amended complaint and finding that the proposed
complaint failed to set forth the claim adequately.

1

In light of

Plaintiff failed to follow the Court’s instruction that
“[p]laintiff shall execute service of process on the new parties
within sixty (60) days of this Order.” (Doc. #49, p. 6.) To date,
plaintiff has not served defendants Countrywide and Bank of
America.
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plaintiff’s pro se status, the Order once again explained the
requirements for filing an adequate complaint pursuant to Federal
Rules of Civil Procedure 8 and 10.

(Id.)

On February 15, 2012, plaintiff again filed a Motion for a
Second Amended Complaint (Doc. #58), which the Court construes as
plaintiff’s Second Amended Complaint.

(Doc. #59)

II.
The Court now turns to the specific allegations of the Second
Amended

Complaint.

Read

liberally,

as

is

required

due

to

plaintiff’s pro se status, Hughes v. Lott, 350 F.3d 1157, 1160
(11th

Cir.

defendant

2003),
Deutsche

the
Bank

Second
filed

Amended
an

Complaint

improper

alleges

foreclosure

that

action

against plaintiff in the Circuit Court of the Twentieth Judicial
Circuit of Florida. (Doc. #58.) Plaintiff contends that the three
defendant banks engaged in fraud by: (1) falsely promising a
modification of plaintiff’s mortgage; (2) hiding documents needed
to put up a successful defense; (3) filing false and misleading
documents; and (4) filing lawsuits without having the proper papers
in hand.

(Id.)

Plaintiff also alleges that the banks: (1)

violated plaintiff’s civil rights under Amendments 1, 4, 5 and 7 of
the Constitution; (2) committed a civil Racketeer Influenced and
Corrupt Organizations (RICO) violation; and (3) violated Fla. Stat.
§ 609.

(Id.)

Additionally, plaintiff alleges numerous wrongs

committed by the state court and individual judges, which he does

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not name as defendants, in the foreclosure action including: (1)
the refusal to grant plaintiff a jury trial; and (2) denying or
failing to address various motions filed in the foreclosure action.
(Id.)

Plaintiff seeks an injunction, compensatory damages of

$449,000,

punitive

damages

of

$10,000,000

property with free and clear title.

and

return

of

his

(Id.)

III.
Deutsche Bank seeks dismissal pursuant to Fed. R. Civ. P.
12(b)(6) because the Second Amended Complaint fails to state
sufficient facts to state any actionable claim.2

In deciding a

Rule 12(b)(6) motion to dismiss, the Court must accept all wellpleaded factual allegations in a complaint as true and take them in
the light most favorable to plaintiff.

Erickson v. Pardus, 551

U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406
(2002); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
“To survive dismissal, the complaint’s allegations must plausibly
suggest that the [plaintiff] has a right to relief, raising that
possibility

above

a

speculative

level;

if

plaintiff’s complaint should be dismissed.”

they

do

not,

the

James River Ins. Co.

v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007));

2

Deutsche Bank also seeks dismissal under the doctrine of res
judicata.
(Doc. #60, pp. 5-6.)
Because the Second Amended
Complaint fails to state sufficient facts to state an actionable
claim, the Court need not address this argument.
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see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.
2010).

“[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although
deficiencies

the
of

Court,

on

plaintiff’s

multiple

occasions,

complaints

and

detailed

provided

the

detailed

instructions on how to cure the various deficiencies, the Second
Amended Complaint does not conform to the pleading requirements of
Federal Rules of Civil Procedure 8 and 10 by providing a short,
plain statement regarding the relief sought.

Although complaints

are construed more liberally in pro se actions, Scarola is subject
to the same law and rules of court as a litigant represented by
counsel, including the Federal Rules of Civil Procedure.

See Moon

v.

Further,

Newsome,

863

F.2d

835,

837

(11th

Cir.

1989).

plaintiff’s allegations concerning fraud again fail to meet the
heightened pleading requirements of Federal Rule of Civil Procedure
9(b)

which

requires

fraud

allegations

to

be

pled

“with

particularity.”
The Court has gone through great lengths on more than one
occasion to outline Scarola’s responsibility to comply with the
Federal Rules and provided him with specific instructions on how to

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comply with such rules.

Despite this Court’s efforts, plaintiff

has again filed an insufficient pleading.
Accordingly, it is now
ORDERED:
1.

Deutsche Bank National Trust Company, as Trustee’s Motion

to Dismiss Second Amended Complaint (Doc. #60) is GRANTED.
2.

The Second Amended Complaint (Doc. #58) is DISMISSED WITH

PREJUDICE.

The Clerk is directed to enter judgment accordingly,

terminate any previously scheduled deadlines and pending motions
and close the file.
DONE AND ORDERED at Fort Myers, Florida, this 29th day of
October, 2012.

Copies:
Counsel of record
Pro se parties

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