Fontaine v. JPMorgan Chase Bank, N.A. et al

Filing 51

ORDER granting 20 the plaintiff's motion to the extent she seeks leave to file a second amended complaint, directing her to file a second amended complaint consistent with the directives of this order by February 12, 2016, and denying the motion to the extent she seeks to file the proposed second amended complaint attached to the motion; denying as moot 17 , 18 the defendants' motions to dismiss; granting 21 the plaintiff's motion to strike the motions to dismiss to the extent the Court denies the motions to dismiss as moot but otherwise denying her motion; denying 29 the plaintiff's motion to compel; and denying 42 the plaintiff's motion for leave to reply. Signed by Magistrate Judge Patricia D. Barksdale on 1/11/2016. (LPB)

United States District Court
Middle District of Florida
Jacksonville Division
JULIE ELICE FONTAINE,
Plaintiff,
v.

NO. 3:15-cv-193-J-34PDB

JPMORGAN CHASE BANK, N.A., ETC.,
Defendants.

Order
Before the Court are the defendants’ motions to dismiss the amended
complaint, Docs. 17, 18, the plaintiff’s motion to file a second amended complaint,
Doc. 20,1 the defendants’ responses, Docs. 22, 23, the plaintiff’s motion to strike the
motions to dismiss, Doc. 21, the plaintiff’s motion for discovery, Doc. 29, the
defendants’ responses, Docs. 30, 32, the plaintiff’s motion for leave to file a reply to
the defendants’ responses, Doc. 42, and the defendants’ responses, Docs. 46, 47.
I.

Background
After unsuccessfully bringing an action in the United States District Court for

the District of Columbia concerning property at 4544 Deer Valley Drive, Jacksonville,
Florida, against JP Morgan Chase Bank, N.A. (Chase), Federal National Mortgage

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plaintiff moves to file a second amended complaint exceeding 25 pages.
Doc. 20. The Court construes this request as a motion for leave to file a second
amended complaint.

Association (FNMA), PHH Mortgage Corporation (PHH), and John Does 1 through
10, see Fontaine v. JPMorgan Chase Bank, N.A., No. 13-cv-1892 (D.D.C.), the plaintiff
brought this action in state court here concerning the same property against the same
defendants.2 Doc. 2. The defendants removed the case to this Court. Doc. 1. The Court
struck the complaint because it was a shotgun pleading and failed to comply with
Federal Rule of Civil Procedure 8 and directed her to file an amended complaint. Doc.
8. She did, but her amended complaint is, as the court in the District of Columbia
described the complaint there, “exceedingly difficult to decipher.” See Fontaine v.
JPMorgan Chase Bank, N.A., 42 F. Supp. 3d 102, 104 (D.D.C. 2014) (quoted).
The amended complaint contains no separately identifiable causes of action.
See generally Doc. 14. Through legal conclusions, the plaintiff asserts that Chase
failed to answer a qualified written request under 12 U.S.C. § 2605(e) and validation
of debt correspondence under the Fair Debt Collections Practices Act, 15 U.S.C. §§
1692–1692p. Doc. 14 ¶¶ 8–9. She asserts that her “loan has been securitized” without
notification and that she does not know who has the right to the mortgage and note.
Doc. 14 ¶¶ 12–17. She asserts that the transfers of the mortgage are void because
they had not been recorded or disclosed to her under 15 U.S.C. § 1641(g) of the Truth
in Lending Act (TILA). Doc. 14 ¶¶ 25–28. She asserts that without knowing the owner

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plaintiff has brought other mortgage-related actions involving other
property as well. See Fontaine v. Bank of Amer., N.A., No. 13-cv-1638 (D.D.C.)
(dismissing for lack of subject-matter jurisdiction based on Rooker-Feldman
doctrine); Fontaine v. Bank of Amer., N.A., No. 14-cv-1944-WQH-DHB (S.D. Cal.)
(dismissing based on procedural deficiencies); Fontaine v. Citibank, N.A., No. 6:14cv-536-SPS (E.D. Okl.) (allowing amendment to cure procedural deficiencies).
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of the mortgage and note due to assignments, the mortgage is invalid. Doc. 14 ¶¶ 18–
24, 29–34, 39. She asserts that the mortgage and note have been impermissibly
separated from each other. Doc. 14 ¶¶35–38. She seeks declaratory relief, injunctive
relief, compensatory damages, punitive damages, interest, attorney’s fees, and costs.
Doc. 14 at 11–12.
In their motions to dismiss, the defendants assert that the amended complaint
fails to comply with Rule 8, contains no specific allegations for each defendant, and
states no cause of action upon which relief may be granted. Doc. 17 (PHH’s motion),
Doc. 18 (Chase’s and FNMA’s motion). PHH argues that, to the extent the plaintiff
challenges the mortgage assignment because it was not recorded, she lacks standing
to raise the claim and, regardless, recording does not affect enforceability. Doc. 17 at
6–10. PHH argues that, to the extent she asserts the mortgage and note are
unenforceable because they were “stripped or severed,” Florida law does not recognize
such a claim. Doc. 17 at 11–14. PHH argues that she cannot state a claim under 15
U.S.C. § 1641(g) because the mortgage was not secured by her principal dwelling and
PHH is not an assignee creditor. Doc. 17 at 14–15. PHH argues that she is not entitled
to damages because she alleges no harm. Doc. 17 at 15–16. And PHH argues that she
is not entitled to declaratory relief because she does not allege it is threatening to
enforce the mortgage or note, and there is no actual controversy. Doc. 17 at 16–17.
Chase and FNMA argue that the statute of limitations bars any claim under
15 U.S.C. § 1641(g), the alleged violations pre-date TILA’s effective date and it does
not apply retroactively, and the plaintiff does not allege detrimental reliance. Doc. 18

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at 7–9. They argue that the claim the assignment rendered the mortgage void is
frivolous and that splitting the mortgage and note would not affect enforceability.
Doc. 18 at 10–12. They argue that, to the extent she asserts a RESPA violation by
alleging that they failed to respond to qualified written requests under 12 U.S.C. §
2605(e)(1)(A), the claim should be dismissed because she fails to allege she sent a
qualified written request inquiring about the servicing of her loan instead of a letter
relating to the origination of it and she fails to allege damages. Doc. 18 at 9–10.
In her motions for leave to file a second amended complaint, Doc. 20, and to
strike the motions to dismiss, the plaintiff contends her proposed second amended
complaint contains “a plethora of prima facie facts” establishing the defendants do
not have title claims to her property. Doc. 21 at 2. She asks for leave to file a second
amended complaint exceeding 25 pages. Doc. 20 at 1.3 She attaches the proposed
second amended complaint, Doc. 20-2, with exhibits of a chain-of-title analysis and
mortgage-fraud investigation report, Doc. 20-3, an affidavit from a private
investigator, Doc. 20-4, a payment-history chart, Doc. 20-5, and a memorandum
quoting Florida law, New York law, and the Uniform Commercial Code, Doc. 20-6.
PHH observes that the proposed second amended complaint adds no cause of
action, only factual allegations concerning the same claims asserted in the amended
complaint. Doc. 22 at 1–2. It argues that the claims fail for the same reasons stated
in its motion to dismiss because her proposed additional factual allegations do not

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plaintiff attaches a proposed order to her motion. Doc. 20-1. The Court,
as it has before, Doc. 13, advises her that it does not require or even desire proposed
orders unless otherwise instructed.
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cure the deficiencies. Doc. 22 at 2. It argues that she cannot assert valid claims under
the facts and circumstances and further amendment would be futile. Doc. 22 at 2–3.
Chase and FNMA make the same arguments, reiterate that she cannot satisfy Rule
8 with either the amended complaint or the proposed second amended complaint, and
argue the proposed second amended complaint could not survive a motion to dismiss.
Doc. 23.
II.

Law & Analysis
Under Rule 8(a)(2), a complaint must provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Under Rule 8(d), each
complaint allegation “must be simple, concise, and direct.” Under Rule 10(b), claims
or defenses must be stated “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Under Rule 12(f), any “redundant,
immaterial, impertinent, or scandalous matter” may be stricken from a complaint. To
survive dismissal, a complaint must allege facts, accepted as true, that state a claim
“that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That
standard asks for less than a probability but “more than a sheer possibility that a
defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id.
A court must hold a pleading drafted by a pro se litigant to a less stringent
standard than one drafted by a lawyer. Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998). But a pro se litigant is expected to follow the procedural rules;
“experience teaches that strict adherence to the procedural requirements specified by

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the legislature is the best guarantee of evenhanded administration of the law.”
McNeil v. United States, 508 U.S. 106, 113 (1993). Although a court must treat a pro
se pleading leniently, the court cannot rewrite a deficient pleading for a party or
otherwise serve as his de facto counsel. GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662.
A pro se complaint fails to satisfy Rule 8 and may be dismissed where it
includes general allegations not relevant to each count, unnecessary evidence, and
legal arguments. See Chevy Chase Bank, F.S.B. v. Carrington, No. 6:09-cv-2132-Orl31GJK, 2010 WL 745771, at *4 (M.D. Fla. Mar. 1, 2010) (unpublished) (dismissing
claims “consisting of lengthy legal arguments, case citations, and quotations from
treatises—material proper in a legal memoranda, but almost never proper in a
complaint”); Dismuke v. Univ. of S. Fla. Bd. of Trs., No. 8:05-cv-340-T-17-TBM, 2006
WL 166547, at *2 (M.D. Fla. Jan. 23, 2006) (unpublished) (finding complaint failed to
comply with Rules 8 and 10 because it consisted “of unnecessary evidentiary details
and unsupported conclusions of law”).
Under Rule 15(a), a court should freely permit a plaintiff to amend a complaint
if justice so requires. Without having provided a pro se plaintiff with at least one
chance to amend, a court should not dismiss the complaint with prejudice for failure
to state a claim upon which relief may be granted unless it appears beyond a doubt
she cannot prove any set of facts to support her claim that would entitle her to relief.
Bank v. Pitt, 928 F.2d 1108, 1111−12 (11th Cir. 1991), overruled as to represented

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litigant only by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th
Cir. 2002).
The proposed second amended complaint appears subject to the same fate as
the case the plaintiff brought in the District of Columbia (No. 13-cv-1892) but is even
more difficult to decipher than the amended complaint. Compare Doc. 2 with Doc. 14.
Although the Court already gave her one opportunity to amend at the outset,
considering that she is proceeding without a lawyer, she now has the benefit of the
defendants’ arguments, and she has asked for leave to amend under Rule 15(a)’s
liberal standard, the Court will give her one final opportunity to amend. But the
proposed second amended complaint does not suffice because it does not comport with
procedural rules: it falls well shy of the “short and plain” standard, it includes
allegations that are the opposite of “simple, concise, and direct,” it fails to limit each
numbered paragraph as far as practicable to a single set of circumstances, it includes
redundant matter (like the same or essentially the same allegation twice), it includes
immaterial matter (like block quotes of statutes), it includes many conclusory
statements, and it fails to differentiate among the defendants. As the Court has
already explained,
Rules 8 and 10 work together “to require the pleader to present his
claims discretely and succinctly, so that his adversary can discern what
he is claiming and frame a responsive pleading, the court can determine
which facts support which claims and whether the plaintiff has stated
any claims upon which relief can be granted, and, at trial, the court can
determine that evidence which is relevant and that which is not.” Fikes
v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996) (citation omitted).
“Where the allegations of a complaint are ‘vague and ambiguous—
leaving the reader to guess at precisely what the plaintiff [is] claiming,’
the court should order a repleader.” Holbrook v. Castle Key Ins. Co., 405
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F. App’x 459, 460 (11th Cir. 2010) (quoting Byrne v. Nezhat, 261 F.3d
1075, 1128 (11th Cir. 2001)). Moreover, in a case with multiple
defendants, the complaint should contain specific allegations with
respect to each defendant; generalized allegations “lumping” multiple
defendants together are insufficient to permit the defendants, or the
Court, to ascertain exactly what a plaintiff is claiming. See West Coast
Roofing and Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x 81,
86 (11th Cir. 2008) (citing Ambrosia Coal & Const. Co. v. Pages Morales,
482 F.3d 1309, 1317 (11th Cir. 2007) and Brooks v. Blue Cross and Blue
Shield of Fla., Inc., 116 F.3d 1364, 1381 (11th Cir. 1997)).
Doc. 8 at 3–4.4
Before filing a second amended complaint, the plaintiff must read the
arguments and authority in the defendants’ motions to dismiss and responses in
opposition to filing the second amended complaint, Docs. 17, 18, 22, 23, as well as all
of the procedural rules set forth above. While the rules do not limit the number of
pages for a pleading, as stated, under Rule 8(a)(2), a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” After

4Other

courts have similarly explained pleading requirements to the plaintiff.
One court explained:
Plaintiff’s [complaint] consists of a series of bolded headings followed by
dense paragraphs of indefinite allegations. [It] fails to identify violations
of law allegedly committed by Defendants, with the exception of
references to violations of two federal statutes. [As to these violations,
it] does not indicate the alleged wrongful acts performed by each
Defendant, preventing Defendants from responding to the allegations.
Fontaine v. Bank of America, N.A., No. 14-cv-1944-WQH-DHB, 2015 WL 5022429, at
*4 (S.D. Cal. Aug. 21, 2015) (unpublished), appeal docketed, No. 15-56948 (9th Cir.
Dec. 21, 2015); see also Fontaine v. Citibank, N.A., No. 6:14-cv-536-SPS, Doc. 38 (E.D.
Okl. Aug. 21, 2015) (explaining amended complaint must comply with Rule 8 and
“must set forth the legal theories on which she is suing, the wrongdoing she claims
was committed by the Defendants, the injury she suffered as a result of such
misconduct, the damages she suffered as the result of such injury, and any nonmonetary relief to which she may be entitled.” Id.
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setting forth general factual allegations—not legal conclusions—pertinent to all
counts, she should assert each claim as a separate count (i.e., “Count One,” “Count
Two”), specifically identifying the defendant(s) she is asserting the claim against and
what conduct of that defendant she is alleging gave rise to the claim. She must
exclude legal conclusions, argument, and unnecessary evidentiary details.
In another motion, the plaintiff requests discovery and cites letters she sent to
Chase in August and September 2013, well before she had filed this action. Doc. 29.
Chase and FNMA assert she has not served them with any discovery request. Doc.
30. PHH asserts discovery is premature in light of the pending motions to dismiss
and the posture of the case, she does not appear to be seeking discovery from PHH,
and, if she is, she has not served it with any discovery request so there is nothing to
compel. Doc. 32.
The plaintiff has not complied with Local Rule 3.04(a) requiring her to quote
the interrogatory or request for production to which her motion is addressed, and it
appears from the defendants’ representations she has not yet sent them any discovery
requests in this action. She must first seek discovery from the defendants before, if
necessary, moving to compel under both the Federal Rules of Civil Procedure and the
Local Rules. Even if she had sought discovery, it was premature because, “[u]nless
otherwise ordered by the Court, a party may not seek discovery from any source
before” the required case management meeting. See Local Rule 3.05(c)(2)(B) (quoted);
see also Fed. R. Civ. P. 26(d)(1) (“A party may not seek discovery from any source
before the parties have conferred.”). She filed her motion to compel on August 26,

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2015, Doc. 29; the case management meeting occurred on November 19, 2015, Doc.
38 at 2. The reply she seeks to file, Doc. 42, is unnecessary to a decision on the motion.
III.

Conclusion
The Court:
1.

grants the plaintiff’s motion, Doc. 20, to the extent she seeks to file a
second amended complaint and directs her to file a second amended
complaint consistent with this order by February 12, 2016, but denies
the motion to the extent she seeks to file the proposed second amended
complaint attached to it, Doc. 20-2;

2.

denies the defendants’ motions to dismiss as moot, Docs. 17, 18;

3.

grants the plaintiff’s motion to strike the motions to dismiss to the
extent the Court denies the motions to dismiss as moot but otherwise
denies the motion, Doc. 21; and

4.

denies the plaintiff’s motion to compel, Doc. 29, and her motion for leave
to reply to the defendants’ responses to her motion to compel, Doc. 42.

Ordered in Jacksonville, Florida, on January 11, 2016.

c:

Counsel of Record
Julie Elice Fontaine
449 Sierra Manor Road, #19
P.O. Box 381
Mammoth Lakes, CA 93546

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