Bernard et al v. Wachovia Mortgage Corporation et al

Filing 19

ORDER granting in part 8 Motion to Dismiss for Failure to State a Claim. Plaintiffs' Verified Complaint (Doc. 2) is DISMISSED WITHOUT PREJUDICE. Plaintiffs have leave to file an amended complaint on or before Tuesday, September 17, 2013. Signed by Judge Roy B. Dalton, Jr. on 8/28/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHIRLEY G. BERNARD; and ROBERT
N. BERNARD,
Plaintiffs,
v.

Case No. 6:13-cv-1044-Orl-37TBS

WACHOVIA MORTGAGE
CORPORATION; and WELLS FARGO
BANK, N.A.,
Defendants.
ORDER
This cause is before the Court on Defendant’s Motion to Dismiss Verified
Complaint with Prejudice (Doc. 8), filed July 17, 2013. Upon consideration, the Court
hereby grants Defendant’s motion in part.
Plaintiffs, proceeding pro se, filed the instant single-count Complaint on April 19,
2013. (Doc. 2.) It alleges that Defendant fraudulently induced Plaintiffs into signing a
mortgage on their home. (Id. at 2–5.) The allegedly fraudulent mortgage is attached to
the Complaint and was signed on July 9, 2007. (Id. at 23.)
Defendant now moves to dismiss the Complaint, arguing that it is time-barred
and that it fails to state a claim. (Doc. 8.) The time for a response has passed and
nothing has been filed. Therefore, the Court considers the motion unopposed.1
Nevertheless, even if Plaintiffs responded to the motion, it would not change the Court’s

1

Weeks after a response was due, Plaintiffs ultimately filed a motion to amend
their complaint (Doc. 15), which Magistrate Judge Smith denied for lack of particularity
(Doc. 18). Nonetheless, this Court will grant Plaintiffs leave to amend out of an
abundance of caution given their pro se status, as detailed below.

consideration.
The Complaint appears to be a standard form taken from the Internet. It does not
meet the heightened pleading standard required by Federal Rule of Civil Procedure 9(b)
because it does not include the particulars—that is, the who, what, when,2 where, and
how of the alleged fraud. See Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th
Cir. 2006) (explaining that the allegations must contain the “first paragraph of any
newspaper story” (citations and internal quotation marks omitted)); see also Brooks v.
Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997) (noting
that plaintiffs are required to plead: (1) which statements were made in which
documents; (2) the time, place, and speaker of each statement; (3) the content of each
statement and how it misled the plaintiff; and (4) what the defendants obtained due to
the fraud). Plaintiffs’ broad allegations that they were simply “induced” into signing the
mortgage are therefore insufficient. (See Doc. 2, ¶¶ 12–19.)
The Complaint is thus due to be dismissed. However, as Plaintiffs are pro se, the
Court will give them an opportunity to amend their pleading. Nevertheless, the Court
reminds Plaintiffs that they, like all litigants, are “subject to the relevant law and rules of
court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989).
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant’s Motion to Dismiss Verified Complaint with Prejudice (Doc. 8)

2

Furthermore, Florida’s statute of limitations provides that a “legal or equitable
action founded on fraud” must be commenced within four years of the time that the facts
giving rise to the cause of action were or should have been discovered. Fla. Stat.
§§ 95.11(3)(j), 95.031(2)(a). If Plaintiffs choose to file an amended complaint, they
should plead the date on which they discovered the alleged fraud so that the Court can
adequately determine whether this action is time-barred.

2

is GRANTED in part.
2.

Plaintiffs’ Verified Complaint (Doc. 2) is

DISMISSED WITHOUT

PREJUDICE.
3.

Plaintiffs have leave to file an amended complaint consistent with the
directives in this Order on or before Tuesday, September 17, 2013.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 28, 2013.

Copies:
Counsel of Record
Pro Se Parties

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