Mair v. Wells Fargo Bank, NA et al
Filing
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ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Signed by Judge Marcia G. Cooke on 3/28/2014. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-24265-Civ-COOKE/TURNOFF
JOAN E. MAIR, et al.,
Plaintiffs,
vs.
WELLS FARGO BANK NA, WELLS FARGO
HOME LOANS, BEN-EZRA & KATZ, SCOTT E.
SIMOWITZ, WACHOVIA MORTGAGE
CORPORTAION, and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.
_________________________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS MATTER is before me on Defendant Scott E. Simowitz’s Motion to Dismiss,
Motion for More Definite Statement (“Motion to Dismiss”) (ECF No. 7). Plaintiff Joan E.
Mair filed her Brief in Support of Plaintiff’s Motion in Opposition to Defendant’s Motion to
Dismiss Plaintiff’s Complaint (ECF No. 8), to which Defendant Scott E. Simowitz elected
not to reply. Therefore, Defendant Scott E. Simowitz’s Motion to Dismiss, Motion for
More Definite Statement is fully briefed and ripe for adjudication. I have reviewed the
Motion to Dismiss and Motion for More Definite Statement, the Response thereto, the
record, and the relevant legal authority. For the reasons provided herein, Defendant Scott
E. Simowitz’s Motion to Dismiss, Motion for More Definite Statement is granted.
I. BACKGROUND
Plaintiff Joan E. Mair (“Plaintiff” or “Ms. Mair”), proceeding pro se, brings this
action against several defendants, including Defendant Scott E. Simowitz, seeking an
injunction precluding the foreclosure sale of her property located at 10360 SW 138 Street,
Miami, Florida 33176 (“Subject Property”) on grounds that the Defendants lack standing to
enforce the promissory note and mortgage on the Subject Property. See generally Compl.,
ECF No. 1. Plaintiff’s equitable action in this Court is predicated on a foreclosure suit that
is currently pending in the Circuit Court of the Eleventh Judicial Circuit Court in and for
Miami-Dade County, Florida, Case No. 08- 70469-CA-11 (the “Underlying Foreclosure
Suit”).
II. LEGAL STANDARDS
A. Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1)
Defendant Scott E. Simowitz, in part, premises his Motion to Dismiss on Rule
12(b)(1) of the Federal Rules of Civil Procedure, challenging this Court’s subject matter
jurisdiction. When considering a 12(b)(1) challenge, a court is faced with either a facial
attack or a factual attack. See Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003).
“Facial attacks challenge subject matter jurisdiction based on the allegations in the
complaint.”
Id.
In other words, the allegations themselves reveal that subject matter
jurisdiction is deficient. By contrast, factual attacks contest the truth of the allegations,
which, by themselves, would be sufficient to invoke federal jurisdiction. Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Morrison, 323 F.3d at 925 n.5 (“Factual
attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.”). In
resolving a factual attack, the district court may consider evidence outside the pleading,
such as testimony and affidavits. Morrison, 323 F.3d at 925 n.5. However, “[f]acial attacks
on the complaint require the court merely to look and see if the plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken
as true for the purposes of the motion.” Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A.,
104 F.3d 1256, 1261 (11th Cir. 1997) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir.1990)) (internal quotation marks omitted).
In the instant case, Defendant Scott E. Simowitz asserts a facial attack because it
concerns the alleged lack of subject matter jurisdiction “solely on the basis of the pleadings.”
Morrison, 323 F.3d at 925 n.5. Defendant Scott E. Simowitz argues that Ms. Mair’s claims,
as pled in the Complaint, are inadequate to confer subject matter jurisdiction. Therefore, I
will consider only the Complaint and the attachments thereto.
B. Failure to State a Claim Pursuant to Rule 12(b)(6)
A complaint “must contain . . . a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
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also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that a plaintiff must
articulate “enough facts to state a claim to relief that is plausible on its face.”). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. at 678. A complaint’s factual allegations must be enough to raise a right to
relief above speculative level.
Detailed factual allegations are not required, but a
Id.
pleading “that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a
cause of action will not do.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S. at 555).
A court need not have to accept legal conclusions in the complaint as true. See
Ashcroft v. Iqbal, 556 U.S. at 678. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”
Id. at 679.
A “[O]nly a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. When a
plaintiff pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief. See id. at 678.
The purpose of a motion to dismiss is to test the facial sufficiency of a complaint. See
Hermoza v. Aroma Restaurant, LLC, No. 11-23026-CIV, 2012 WL 273086, at *1 (S.D. Fla.
Jan. 30, 2012). Therefore, a court’s consideration when ruling on a motion to dismiss is
limited to the complaint and any incorporated exhibits. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000).
III.
DISCUSSION
A. Lack of Subject Matter Jurisdiction
a. Plaintiff’s Complaint Fails to Invoke this Court’s Subject Matter Jurisdiction.
“A necessary corollary to the concept that a federal court is powerless to act without
jurisdiction is the equally unremarkable principle that a court should inquire into whether it
has subject matter jurisdiction at the earliest possible stage in the proceedings. Indeed, it is
well settled that a federal court is obligated to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th
Cir. 2005). “[O]nce a federal court determines that it is without subject matter jurisdiction,
the court is powerless to continue.” Id. at 974-75. “In a given case, a federal district court
must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a
specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3)
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diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Baltin v. Alaron Trading Corp., 128
F.3d 1466, 1469 (11th Cir. 1997) (citing Klein v. Drexel Burnham Lambert, 737 F. Supp. 319,
323 n.11 (E.D. Pa. 1990)). In this case, the Court lacks all three types of subject matter
jurisdiction.
Plaintiff does not bring her claims pursuant to any specific statute. Also, she does
not raise a federal question, because she does not present any claim that arises under federal
law (the Constitution, laws or treaties of the United States). Rather, Plaintiff’s claim to
enjoin the foreclosure sale of the Subject Property, if any, would arise under state law. See
Christman v. Jackson Hewitt, Inc., 379 F. App’x 956, 958 (11th Cir. 2010) (upholding the
district court’s dismissal of pro se plaintiff’s action for lack of subject matter jurisdiction).
Lastly, accepting the allegations in Plaintiff’s Complaint as true, there is no diversity
jurisdiction pursuant to 28 U.S.C. § 1332, which requires complete diversity of all parties
and an amount in controversy that exceeds $75,000. Here, the Complaint does not contain
any allegations regarding the amount in controversy and does not address the citizenship of
the Plaintiff and many of the Defendants. Because Plaintiff Complaint fails to invoke the
jurisdiction of this Court, the Complaint must be dismissed. Id. at 957-58.
b. Plaintiff’s Complaint Runs Afoul of the Rooker-Feldman Doctrine.
Liberally construing Plaintiff’s claim1, Plaintiff is asking this Court to invalidate
and/or interfere with the Underlying Foreclosure Suit by ruling that the state court
foreclosure judgment is void or should be enjoin. However, this Court lacks subject matter
jurisdiction, as Plaintiff seeks a de facto appeal of a previously litigated state court matter.
The Rooker-Feldman doctrine, which provides that “United States district courts do not have
subject matter jurisdiction to review the judgments of a state court,”
Bosdorf v. Beach, 79
F.Supp.2d 1337, 1339 (S.D. Fla. 1999) (quoting District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983)), bars this Court from hearing Plaintiff’s claims since she
1
A pro se litigant’s pleadings must be construed more liberally than those pleadings drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990) (“In the case of a pro se action,…the court should construe the complaint more
liberally than it would formal pleadings drafted by lawyers”). However, “this lenience does not give
a court license to serve as de facto counsel for a party…or to rewrite an otherwise deficient pleading
in order to sustain an action.” GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998) (internal citations omitted).
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is essentially seeking appellate review of the Underlying Foreclosure Suit, which is pending
in state court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Feldman, 460 U.S. 462 (1983).
The Rooker-Feldman doctrine applies to “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the federal district court
proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281 (2005). The
Rooker-Feldman doctrine further affirms that no federal courts, other than the United States
Supreme Court, have the authority to review final judgments of state courts. Goodman v.
Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001).
The Rooker-Feldman doctrine encompasses claims, such as Plaintiff’s, that are
“inextricably intertwined” with a state court judgment. Id. Plaintiff is attempting to a have
this Court review and resolve issues that are the subject of a pending state court proceeding.
Plaintiff alleges that Defendants previously commenced the Underlying Foreclosure Suit in
Florida state court, but Defendants have not, and cannot, demonstrate they own the
promissory note and mortgage on the Subject Property or otherwise establish standing to
maintain the Underlying Foreclosure Suit. Compl. ¶¶ 3, 15-18. Therefore, in asking this
Court to enjoin the foreclosure sale of the Subject Property and declare that the Defendants
lack standing to enforce the promissory note and mortgage, Plaintiff is seeking the
resolution of an issue – namely standing – that the state court will necessarily address and
resolve in the Underlying Foreclosure Suit. See McLean v. JP Morgan Chase Bank, N.A., 79 So.
3d 170, 173 (Fla. Dist. Ct. App. 2012) (noting that “[a] crucial element in any mortgage
foreclosure proceeding is that the party seeking to foreclose must demonstrate that it has
standing to foreclose”).
IV. CONCLUSION
Plaintiff’s Complaint fails to sufficiently plead subject matter jurisdiction in two
distinct manners. Having determined this Court lacks subject matter jurisdiction to hear
Plaintiff’s claims, I need not address Defendant Scott E. Simowitz’s substantive defendant
regarding Florida’s litigation privilege.
Accordingly, Defendant Scott E. Simowitz’s Motion to Dismiss, Motion for More
Definite Statement (ECF No. 7) is GRANTED. Plaintiff’s Complaint (ECF No. 1) is
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DISMISSED with prejudice for lack of subject matter jurisdiction.2 A separate judgment in
favor of Defendants Wells Fargo Bank NA, Wells Fargo Home Loans, Ben-Ezra & Katz,
Scott E. Simowitz, Wachovia Mortgage Corporation, and Mortgage Electronic Registration
Systems Inc., and against Plaintiff Joan E. Mair shall issue contemporaneously pursuant to
Federal Rule of Civil Procedure 58.
DONE and ORDERED in chambers, at Miami, Florida, this 28th day of March
2014.
Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record
2
See Jemison v. Mitchell, 380 F. App’x 904, 907 (11th Cir. 2010) (“Dismissal with prejudice is proper,
however, … if a more carefully drafted complaint could not state a valid claim.”).
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