Hammer et al v. Bank of America

Filing 32

ORDER: Defendant Bank of America, N.A.'s Motion to Dismiss Verified First Amended Complaint 14 is GRANTED. The Clerk is directed to terminate all pending motions and to close the case. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 1/3/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID ERIC HAMMER and ANNE
MARIE NEEL HAMMER,
Plaintiffs,
v.

Case No. 8:13-cv-1910-T-33AEP

BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR WAMU
2006-AR13, AS A SUCCESSOR BY
ASSIGNMENT FROM WASHINGTON MUTUAL
BANK,
Defendant.
/
ORDER
This matter comes before the Court pursuant to Defendant
Bank of America, N.A.’s Motion to Dismiss Verified First
Amended Complaint (Doc. # 14), which was filed on August 12,
2013.

Plaintiffs David Hammer and Anne Marie Hammer filed a

Response in Opposition to the Motion (Doc. # 17) on August 13,
2013.

The Court grants the Motion to Dismiss for the reasons

that follow.
I.

Background
A.

The Hammers’ Lease Agreement

According

to

the

Verified

Amended

Complaint

for

Injunctive Relief and Damages, the Hammers entered into a
Residential Lease Agreement with Lawrence Malloy to occupy

certain real property in Hillsborough County, Florida located
at 1604 Wallace Road, Lutz, Florida 33549. (Doc. # 8 at ¶ 6).
The lease agreement, dated May 20, 2008, is before the Court.
(Doc. # 8-1).

That document states as to the term of the

Agreement: “Landlord leases to Tenant and Tenant leases from
Landlord the Leased Premises for a term of one month, such
term beginning on May 24, 2008, and ending at 12 o’clock
midnight on June 23, 2008.

Thereafter, this Agreement shall

automatically renew for additional one-month periods, absent
notice by either Party.

If either Party gives notice to the

other Party as provided herein, this Agreement shall terminate
sixty (60) days following the date of receipt of the notice,
and this Agreement shall no longer automatically renew.” (Id.
at 1).
As to the rental payments, the Agreement specifies that
“the rent shall be one thousand dollars per month” but that
“tenant may pay rent by repairing or improving the Leased
Premises, in lieu of making a payment to Landlord.” (Id.).
The Hammers contend that as of May 20, 2008, they have “paid
in

excess

of

$74,000.00

in

maintenance,

repairs,

and

improvements to the Property” and “[b]ased on the monthly
rental amount, the prepaid rent (through today) serves to
extend the lease through July 20, 2014.
2

Hammers are entitled

to occupy the property through and including July 20, 2014.”
(Doc. # 8 at ¶¶ 11-12).
B.

Foreclosure and Other State Court Proceedings

Washington Mutual Bank filed a State Court foreclosure
complaint

against

Malloy

December 26, 2007.

and

other

(Id. at ¶ 17).

“unknown”

parties

on

Thereafter, on February

15, 2008, Washington Mutual dropped all “unknown” parties from
the foreclosure action. (Id. at ¶ 18). On May 6, 2009, Malloy
filed a Chapter 7 Bankruptcy case in which he abandoned the
property. (Id. at ¶ 16).

On May 19, 2009, the State Court

issued a Certificate of Title to Washington Mutual as to the
property. (Id. at ¶ 21).

On June 11, 2009, Washington Mutual

filed a Motion for Writ of Possession in State Court. (Id. at
¶ 22). On July 10, 2009, the State Court granted the Motion
for Writ of Possession. (Id. at ¶ 24).

The Hammers objected

and the State Court entered an Order staying its prior Order
granting the Bank’s Writ of Possession, pending a hearing on
the Hammers’ opposition. (Id. at ¶ 25). On September 1, 2009,
the State Court held a hearing on the Hammers’ opposition, but
ultimately ruled against the Hammers. (Id. at ¶ 26).

The

State Court ordered the Hammers and Washington Mutual to
mediate. (Id.). The mediation proceedings were not fruitful.
(Id. at ¶¶ 27-29).

The Hammers offered to purchase the
3

property, but Washington Mutual rejected the offer. (Id.).
Washington Mutual returned to the State Court, which
reissued its Writ of Possession. (Id. at ¶¶ 30-31). The
Hammers appealed, and the Second District Court of Appeal
affirmed. (Id. at ¶ 33).

Thereafter, Washington Mutual filed

its Second Motion for Writ of Possession and its Third Motion
for Writ of Possession; the State Court granted both Motions.
(Id. at ¶ 35).

The Hammers filed affidavits in opposition to

Washington Mutual’s submissions, which the State Court struck
from the record upon Washington Mutual’s Motion. (Id. at ¶¶
35-37).

On April 25, 2013, the State Court held an ex parte

hearing and issued its Fourth Writ of Possession. (Id. at
¶ 37).

The Hammers moved to vacate the Fourth Writ of

Possession, and the State Court denied the Motion. (Id. at
¶ 38).
C.

Bankruptcy Filings

On May 5, 2013, Anne Hammer filed a bankruptcy petition,
which stayed the execution of the writs; however, her petition
was dismissed on May 21, 2013. (Id. at ¶ 39). On

June 21,

2013, David Hammer filed a bankruptcy petition, however, the
Bankruptcy Court dismissed his petition on July 24, 2013. (Id.
at ¶ 40).

4

D.

The Present Action

On July 24, 2013, the Hammers filed a complaint against
Bank of America seeking injunctive relief and damages (Doc. #
1) and also filed a Motion for Temporary Restraining Order.
(Doc. # 3). On July 25, 2013, the Court denied the Motion for
Temporary Restraining Order. (Doc. # 5). The Hammers filed an
Amended Complaint on July 29, 2013. (Doc. # 8).
The Hammers assert that this “Court has jurisdiction over
this action under 28 U.S.C. §§ 1331, 1337, 1343(a), 1948,
1949, and 1367(a).

The federal questions which arise in this

case fall under 42 U.S.C. §§ 1983 and 1988, the Fifth and
Fourteenth Amendment of the Constitution of the United States
of America, and the Protecting Tenants at Foreclosure Act of
2009 (as amended by the Dodd-Frank Wall Street Reform and
Consumer Protection Act).” (Doc. # 8 at ¶ 4).
The Amended Complaint contains two counts.

In Count I,

asserted pursuant to § 1983, the Hammers assert that “the
Bank, acting under color of state law, in concert with the
Hillsborough County Sheriff’s Office” threatens to violate the
Hammers’ “constitutionally protected property interest in
their tenancy” in violation of the Fourteenth Amendment and
the Protecting Tenants at Foreclosure Act. (Id. at ¶¶ 44-49).
The Hammers seek “a judgment of permanent injunction against
5

the

Bank,

and

anyone

acting

in

concert

with

the

Bank

(specifically including the Hillsborough County Sheriff’s
Office) from proceeding further in the Lawsuit in the Florida
State Courts, without Hammers first having the opportunity to
present evidence of their property right with notice and the
opportunity to be heard, and specifically, the opportunity to
defend their property rights under the PTFA.” (Id. at ¶ 53).
The Hammers intentionally omit Count II and seek damages
for unjust enrichment against Bank of America in Count III.
(Id. at ¶¶ 54-60).

Bank of America seeks dismissal of the

action pursuant to Rule 12(b)(1), Fed. R. Civ. P., under the
Rooker Feldman doctrine and also seeks dismissal of the
Hammers’ claims for failure to state a claim pursuant to Rule
12(b)(6), Fed. R. Civ. P.
II.

Legal Standard
A.

Rule 12(b)(1)

Federal

courts

are

courts

of

limited

jurisdiction.

“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
6

1299 (11th Cir. 2001).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.

Morrison v. Amway Corp.,

323

Cir.

F.3d

920,

924

n.5

(11th

2003).

When

the

jurisdictional attack is factual, as in the instant case, the
Court may look outside the four corners of the complaint to
determine if jurisdiction exists.

Eaton v. Dorchester Dev.,

Inc., 692 F.2d 727, 732 (11th Cir. 1982).
attack,

the

presumption

of

truthfulness

In a factual
afforded

to

a

plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
Because the very power of the Court to hear the case is at
issue in a Rule 12(b)(1) motion, the Court is free to weigh
evidence outside the complaint.
B.

Eaton, 692 F.2d at 732.

Rule 12(b)(6)

On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.

Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

Further,

this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
7

Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).

In addition, courts are not “bound to

accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

III. Analysis
A.

Rooker Feldman Doctrine

In Hammer v. Haire, 369 F. App’x 989 (11th Cir. 2010),
the court set forth four criteria that must be established in
order for the Rooker Feldman doctrine to bar federal court
jurisdiction:
(1) the party in federal court is the same as the
8

party in state court; (2) the prior state court
ruling was a final judgment on the merits; (3) the
party seeking relief in federal court had a
reasonable opportunity to raise his federal claims
in the state court proceeding; and (4) the issue
before the federal court was either adjudicated by
the state court or was inextricably intertwined
with the state court’s judgment.
Id. at 990-91.1
The Supreme Court explained in Exxon Mobil Corp. v. Saudi
Basic Industries, Corp., 544 U.S. 280 (2005), that the Rooker
Feldman doctrine is limited to actions “brought by state-court
losers

complaining

of

injuries

caused

by

state-court

judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.” Id. at 284.
On July 25, 2013, this Court entered a detailed Order
denying the Hammers’ Motion for Temporary Restraining Order.
(Doc. # 5).

Therein, this Court suggested that the Rooker

Feldman doctrine may apply to defeat the Court’s jurisdiction,
as the Hammers appear to be petitioning this Court for relief
from the State Court’s final decree.

However, this Court

specifically noted: “because the Court does not have access to

1

The Rooker Feldman doctrine is based on the holdings of
two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
9

relevant State Court filings, the Court cannot make a final
determination regarding the application of the relevant four
factors required to apply the Rooker Feldman doctrine.” (Id.
at 8, n.3).
At this juncture, Bank of America seeks an Order pursuant
to Rule 12(b)(1), Fed. R. Civ. P., applying the Rooker Feldman
doctrine, yet the Bank has not supplied the Court with
arguments

addressing

the

four

governing

Rooker

Feldman

factors.

Nor has the Bank supplied relevant State Court

documents evidencing its contention that the Rooker Feldman
doctrine should apply here to defeat the Court’s jurisdiction.
The Hammers assert that they “were not parties to the
state court action” in which Washington Mutual sought to
foreclose on the real property (Doc. # 17 at 9) and also argue
that they were not given an opportunity to be heard in the
State Court because that Court struck their affidavits and
held an ex parte hearing resulting in the issuance of the
Fourth Writ of Possession. (Id. at 3).

Bank of America has

not adequately addressed these arguments.
The Court notes that the State Court action was not a
simple, single plaintiff, single defendant case in which there
was a clear winner and a clear loser.

The State Court

foreclosure Complaint names the Plaintiff as Washington Mutual
10

Bank and the “Defendant(s)” as “Lawrence E. Malloy; Unknown
Parties in Possession #1; Unknown Parties in Possession # 2;
If living, and all Unknown Parties claiming by, through, under
and against the above named Defendant(s) who are not known to
be dead or alive, whether said Unknown Parties may claim an
interest

as

Spouse,

Heirs,

Claimants.” (Doc. # 14-1).

Devisees,

Grantees,

or

Other

In contrast, in this action, the

Hammers sue Bank of America.
Furthermore, when the State Court foreclosure complaint
was filed in 2007, the Hammers had yet to begin their tenancy.
Although the Hammers certainly became involved in the State
Court foreclosure action at some point in time, the Court
cannot say with certainty that they were “parties” for the
purpose

of

applying

the

Rooker

Feldman

doctrine

because

Washington Mutual specifically “dropped” all “unknown” parties
in the State Court proceedings.

Although Washington Mutual’s

notice dropping unknown parties was filed three months before
the Hammers began their tenancy, it does not appear that the
Bank later amended the foreclosure complaint to include the
Hammers as Defendants after the Bank learned of the Hammers’
tenancy. There are no State Court documents before this Court
referencing the Hammers.

In addition, it appears that the

single specifically named Defendant in the State Court action,
11

Malloy, abandoned his interest in the property prior to the
resolution of the case.
The Hammers also raise the issue of whether they were
precluded from bringing their current claims in State Court by
contending that the State Court issued its Fourth Writ of
Possession after conducting an ex parte hearing and after
striking the Hammers’ affidavits. No transcripts, State Court
Orders, or even summaries of the arguments presented at the
State Court level are before the Court.

This Court is not in

a position to hypothesize about what the Hammers did argue, or
what they could have argued, in State Court.

As stated in

Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir. 1983),
“the Rooker bar can apply only to issues that the plaintiff
had a reasonable opportunity to raise.”

Bank of America has

not sufficiently addressed this contention.

Instead, Bank of

America summarily asserts that the Rooker Feldman doctrine
applies because Washington Mutual filed a Notice of Lis
Pendens during the State Court proceedings. The Court rejects
the Bank’s conclusory argument.
The Supreme Court has cautioned that the Rooker Feldman
doctrine occupies “narrow ground,” Exxon, 544 U.S. at 284, and
the Eleventh Circuit has described the Rooker Feldman doctrine
as a “limited” and “extremely narrow exception[] to the
12

federal courts’ virtually unflagging duty to adjudicate claims
within their jurisdiction.” Green v. Jefferson County Comm’n,
563 F.3d 1243, 1245 (11th Cir. 2009). Because Bank of America
has not provided analysis of the four Rooker Feldman factors
and has not supplied this Court with State Court documentation
in relation to the governing factors, the Court declines to
apply the Rooker Feldman doctrine.
B.

Rule 12(b)(6) Analysis
1.

To

Section 1983 (Count I)

obtain

relief

under

§

1983,

a

plaintiff

must

demonstrate that he was deprived of a federal right by a
person acting under color of state law. Patrick v. Floyd Med.
Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). It has long been
recognized that § 1983 is not a source of substantive federal
rights. Whiting v. Taylor, 85 F.3d 581, 583 (11th Cir. 1996).
Instead, to maintain a § 1983 action, a plaintiff must point
to a violation of a specific federal right. Id.

Here, the

Hammers asserts that Bank of America violated rights secured
by the Fourteenth Amendment and by the Protecting Tenants at
Foreclosure Act.
Generally, the “under color of state law” requirement
excludes from § 1983’s reach merely private conduct, no matter
how wrongful. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
13

40, 50 (1999). For the Hammers to bring this § 1983 action
against

the

Bank,

a

private

entity,

the

Hammers

must

demonstrate that the conduct allegedly causing the deprivation
of their Constitutional rights is fairly attributable to the
state.

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937

(1982).
Private parties are state actors for § 1983 purposes
“only in rare circumstances.” Harvey v. Harvey, 949 F.2d 1127,
1130 (11th Cir. 1992). For the Bank to be deemed a state
actor, one of the following conditions must be met:
(1) The State coerced or at least significantly
encouraged the action alleged to violate the
Constitution (“State compulsion test”); (2) the
private parties performed a public function that was
traditionally the exclusive prerogative of the State
(“public function test”); or (3) the State had so
far
insinuated
itself
into
a
position
of
interdependence with the [private parties] that it
was
a
joint
participant
in
the
enterprise
(“nexus/joint action test”).
Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

The

Hammers do not plead, nor can they plausibly demonstrate, that
any of these tests for state action can be met.

The factual

allegations of the Amended Complaint do not show that the Bank
performed a traditional State function, that the Bank was
coerced by the State in any way, or that the Bank was a joint

14

participant with the State.2

Here, the Bank, who owns the

real property, petitioned the State Court for a Writ of
Possession, and the State Court granted the request for a Writ
of Possession.

That decision was affirmed on appeal.

The

Bank’s participation in a State Court lawsuit to obtain relief
against the Hammers does not translate into the Bank becoming
a § 1983 state actor. Harvey, 949 F.2d at 1133 (“[U]se of
Courts by private parties does not constitute an act under
color of state law.”).

The Hammers’ § 1983 claim is subject

to dismissal. As any amendment of this claim would be futile,
the Court dismisses this claim with prejudice.
2.
The

Court

Unjust Enrichment (Count III)
has

dismissed

the

Hammers’

federal

claim

asserted in Count I with prejudice and declines to exercise
jurisdiction over the Hammers’ state law claim asserted in
Count III.

The Eleventh Circuit has explicitly advised that

a district court is well within its discretion to dismiss
state law claims once the basis for original federal court
jurisdiction no longer exists.

2

Nolin v. Isbell, 207 F.3d

Under the joint action test, “the governmental body and
the private party must be intertwined in a symbiotic
relationship.” Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th
Cir. 2001).
That relationship “must involve the specific
conduct of which the plaintiff complains.” Id.
15

1253, 1258 (11th Cir. 2000); see also Rep. of Panama v. BCCI
Holdings (Luxembourg) S.A., 119 F.3d 935, 951 n.26 (11th Cir.
1997)(“After dismissing Panama’s federal claims against . . .
the defendants, the district court correctly dismissed its
remaining state law claims.”); Rice v. Branigar Org., Inc.,
922 F.2d 788, 792 (11th Cir. 1991)(recognizing that a trial
court’s decision to exercise pendant jurisdiction over state
law claims is discretionary).
IV.

Conclusion
It is apparent to the Court that the Hammers’ § 1983

claim is unavailing, and the Court declines to address the
merits of the state law unjust enrichment claim.

The Court

dismisses the Amended Complaint without leave to amend after
determining that further amendment of the Complaint would be
futile.

The Court previously entered an Order identifying

deficiencies in the Hammers’ Complaint and explaining the
requirements for pleading a § 1983 action, specifically with
regard to “state action.” (Doc. # 5).

Rather than conforming

their pleading accordingly, the Hammers filed an Amended
Complaint (Doc. # 8) containing allegations nearly identical
to

those

which

the

Court

previously

characterized

as

deficient. The Court also notes that the Hammers have already
had the opportunity to amend their Complaint once, and have
16

not requested leave to amend the Complaint in response to the
Bank’s Motion to Dismiss.

Thus, the Court dismisses the

Amended Complaint without leave to amend and instructs the
Clerk to close the case.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Bank of America, N.A.’s Motion to Dismiss
Verified First Amended Complaint (Doc. # 14) is GRANTED.

(2)

The Clerk is directed to terminate all pending motions
and to close the case.
DONE and ORDERED in Tampa, Florida, this 3rd day of

January, 2014.

Copies to:

All Parties of Record

17