Arnold v. JP Morgan Chase Bank, N.A. et al
Filing
10
ORDER AND OPINION denying without prejudice 2 Plaintiff's Emergency Motion for TRO; granting in part and denying in part [3,6] Defendants' Motions to Dismiss. Plaintiff is ordered to restate her claims against McCurdy & Candler by Tuesday, October 15, 2013. Defendants are ordered to respond to plaintiffs restated claim and to show fraudulent joinder by Thursday, October 31, 2013. Signed by Judge Julie E. Carnes on 9/29/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALLYCE K. ARNOLD,
Plaintiff,
CIVIL ACTION NO.
v.
1:12-cv-3820-JEC
J.P. MORGAN CHASE BANK, N.A.,
CITIBANK, N.A., and MCCURDY &
CANDLER, LLC,
Defendants.
ORDER & OPINION
This matter is before the Court on plaintiff Allyce K. Arnold’s
emergency
motion
for
a
temporary
restraining
order
[2]
and
defendants J.P. Morgan Chase Bank, N.A. (“Chase”) and Citibank N.A.’s
(“Citibank”) and McCurdy & Candler, LLC’s (“McCurdy & Candler”)
(collectively, “defendants”) motions to dismiss Arnold’s complaint
[3, 6].
The Court has reviewed the record and the arguments of the
parties
and,
for
the
reasons
set
out
below,
concludes
that
plaintiff’s emergency motion for a temporary restraining order [2]
should be DENIED WITHOUT PREJUDICE and defendants’ motions to dismiss
[3, 6] should be GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN
PART.
AO 72A
(Rev.8/82)
BACKGROUND
This case arises out of foreclosure proceedings defendants
instituted with respect to a residence located at 904 Fox Hollow Way
in Marietta, Georgia (the “Fox Hollow residence”).
On October 17,
2005 plaintiff executed a promissory note with Opteum Financial
Services and a security deed with Mortgage Electronic Registration
Systems (“MERS”) in its capacity as a nominee for Opteum in order to
purchase the Fox Hollow residence.
(2012 Action, Notice of Removal
[1] at Ex. B (Compl.), ¶¶ 8-11; 2012 Action, Mot. to Dismiss [3] at
Ex. A (R&R), at 2.)1
The last payment Plaintiff made on her loan was
on February 26, 2009, at which point she was already a year in
arrears after failing to make any other payments since February of
2008.
See Arnold v. Citibank N.A. and EMC Mortg. Corp., Civil Action
No. 1:10-cv-2263-JEC, Mag J.’s R&R [12]2 (hereinafter “the 2010
Action”).
EMC Mortgage Corporation (“EMC”), the servicer of plaintiff’s
loan, initiated foreclosure proceedings with respect to the Fox
Hollow residence and established a sale date of July 6, 2010.
Plaintiff responded by filing a complaint in the Superior Court of
1
The present case, Docket No. 1:12-cv-3820, will be referred
to as the 2012 Action.
2
A copy of the magistrate judge’s report and recommendation in
the 2010 Action is also attached as Exhibit A of defendants’ Notice
of Removal [1] in the present case.
2
AO 72A
(Rev.8/82)
Fulton County on June 17, 2010 alleging violations of the Truth in
Lending Act (“TILA”) and state law claims based upon fraud and
promissory estoppel.
result.3
EMC suspended the foreclosure proceedings as a
(2010 Action, Resp. in Opp’n [4] at Ex. A (Decl. of EMC),
¶ 3.)
On July 12, 2010 MERS assigned the security deed to Citibank.
(2012 Action, Mot. to Dismiss [3] at Ex. B (Assignment).)
EMC
subsequently removed plaintiff’s action to this Court where the case
was referred to Magistrate Judge Johnson for pre-trial proceedings.
(2010 Action at [1].)
Following the filing of a motion to dismiss by
EMC and Citibank Judge Johnson issued a final and very thorough
Report and Recommendation (“R&R”).
Specifically, as to plaintiff’s
federal TILA claims, requesting rescission of her mortgage agreement
and
damages,
the
magistrate
judge
recommended
dismissal
prejudice, noting that any such claims were time-barred.
3
with
(2010
It is not clear when, but at some point, Chase became the
servicer of the mortgage at issue. (Compare 2012 Action, Mot. to
Dismiss [3] at Ex. D (Notice of Acceleration & Sale) with 2010
Action, Resp. in Opp’n [4] at Ex. 4 (Notice from EMC).)
The
confusion likely stems from the fact that EMC was a subsidiary of The
Bear Stearns Companies, LLC until 2008, when Chase became one of the
trustees for certificate holders of Bear Stearns Mortgage Backed
Securities I, LLC.
See Company Overview of EMC Mortgage LLC,
Bloomberg
Businessweek
(Sept.
24,
2013
9:27
AM)
http://investing.businessweek.com/research/stocks/private/snapshot.
asp?privcapId=1833007. Adding to the confusion is EMC’s synonymous
use of “Chase” in the first action when referring to itself. (See
2010 Action, Resp. in Opp’n [4].)
3
AO 72A
(Rev.8/82)
Action, R&R [12] at 6-9.)
As to plaintiff’s various state-law
claims, the magistrate judge noted that the plaintiff’s pleadings did
not give rise to a claim for these state law actions.
Nonetheless,
the magistrate judge recommended dismissal without prejudice, which
meant that plaintiff would not be foreclosed from bringing a new
action asserting these state law claims.4
(2010 Action, R&R [12] at
17.)
The undersigned adopted the magistrate judge’s R&R in October
2010, dismissing with prejudice the federal TILA claim and dismissing
without prejudice plaintiff’s state law claims.
(2010 Action, Order
Adopting R&R [13].)
This case has found its way back to this Court because on
September 25, 2012, Citibank again instituted foreclosure proceedings
on the Fox Hollow residence and established a sale date of November
6, 2012.
Plaintiff again filed suit in state court, naming Chase,
Citibank, and McCurdy & Candler as defendants and seeking declaratory
and injunctive relief.
For the most part, plaintiff asserted only
state law claims (fraud and promissory estoppel).
(2012 Action,
Notice of Removal [1] at Ex. B (Compl.), ¶¶ 41-101.)
Defendants Chase and Citibank, with McCurdy & Candler’s consent,
4
As to plaintiff’s state-law foreclosure sale claims, the
magistrate judge held that these were not ripe because EMC had
suspended the proceedings when plaintiff filed her complaint in 2010.
(2010 Action, R&R [12] at 10.)
4
AO 72A
(Rev.8/82)
removed
this
jurisdiction.
action
based
on
diversity
and
federal
question
(2012 Action, Notice of Removal [1] at ¶¶ 8-23.)
In
asserting federal question jurisdiction, defendants stated that
plaintiff had asserted federal claims because in her complaint and
motion
for
temporary
restraining
order,
plaintiff
has
alleged
violations of “numerous federal laws, including the Federal Trade
Commission Act, the U.S. Constitution, the Truth in Lending Act, and
the Real Estate Settlement Procedures Act.”
(Id. at ¶ 23.)
Yet,
upon reviewing the complaint, it is difficult to confirm that all
such claims have been raised, as discussed infra.
Prior to defendant’s removal, plaintiff had additionally filed
a motion in state court for an emergency temporary restraining order
forbidding defendants from foreclosing on her residence, which is
listed on the docket as now pending before this Court.
(Id. at [2].)
Finally, after removal, the Bank Defendants (J. P. Morgan Chase Bank
and Citibank) filed a motion to dismiss [3], as did the defendant law
firm, McCurdy & Candler [6].
DISCUSSION
I.
MOTION TO DISMISS STANDARD
In deciding a motion to dismiss, the Court assumes that all of
the allegations in the complaint are true and construes the facts in
favor of the plaintiff.
Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). That said, in order to avoid dismissal a complaint “must
5
AO 72A
(Rev.8/82)
contain sufficient factual matter, accepted as true, to ‘state a
claim [for] relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A claim is “facial[ly] plausib[le]” when
it is supported with facts that “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”
Id.
Because Arnold is a pro se plaintiff, she is given some latitude
in her pleadings.
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998)(“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.”)
This latitude is not unlimited, though.
The
Court may not “serve as de facto counsel for a party, or [] rewrite
an otherwise deficient pleading in order to sustain an action.”
In
re Unsolicited Letters to Fed. Judges, 120 F. Supp. 2d 1073, 1074
(S.D. Ga. 2000)(Edenfield, J.)(quoting GJR Invs., Inc. v. Cnty. of
Escambir, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).
Further, pro
se plaintiffs must still comply with procedural rules. Thomas v. Am.
Tobacco Co., 173 F.R.D. 546, 547 (M.D. Ga. 1997)(Owens, J.)(citing
Moon v. Newsome, 863 F.2d 835 (11th Cir. 1989)).
6
AO 72A
(Rev.8/82)
II.
FEDERAL QUESTION JURISDICTION
As noted, defendants have asserted federal question jurisdiction
stating that plaintiff’s complaint asserts violations of TILA and the
Federal Trade Commission Act, and that her state motion for a
temporary restraining order asserts a violation of the federal RESPA
statute against defendants.
(2012 Action, Notice of Removal [1] at
¶¶ 22-23 (citing 2012 Action, Notice of Removal [1] at Ex. B
(Compl.), ¶¶ 39, 41 and 2012 Action, Notice of Removal [1] at Ex. B
(Mot. for TRO), ¶¶ 7, 9-10).)
In point of fact, it is not altogether clear that plaintiff was
attempting
to
assert
all
of
the
above
federal
claims
in
her
complaint.
The Court will assume that she was attempting to allege
in her complaint a TILA claim and a claim under the Federal Trade
Commission Act.
These claims are discussed below.
Yet, as to
defendants’ claim that plaintiff alleges a Constitutional violation,
the Court can discern no such claim. Defendants apparently draw this
inference based on plaintiff’s discussion of standing, in which she
uses the term “Constitutional” twice.
Yet, she never alleges a
Constitutional violation. (2012 Action, Notice of Removal [1] at Ex.
B (Compl.), ¶ 41.)
As to any possible RESPA claim by plaintiff, she never mentions
the statute in her complaint.
Instead, defendants apparently infer
such a claim based on a statement that plaintiff makes in the TRO
7
AO 72A
(Rev.8/82)
motion that she filed in state court, simultaneously with the filing
of her complaint there.
In that motion, plaintiff states that
defendants “have a fiduciary duty and obligation to perform upon
notice of rescission by cancelling the Transaction” and that “[a]ny
further acts to enforce an invalid security instrument are wrongful,
improper, and a serious breach of the fiduciary duty associated with
Defendants obligations.
Such acts violate TILA and RESPA, and are
contrary to the explicit statutory requirements and contract between
the parties.”
(2012 Action, Notice of Removal [1] at Ex. B (Mot. for
TRO), ¶¶ 7, 9-10.)
From this, defendants apparently infer a RESPA
claim.
The Court disagrees.
The main hint that plaintiff does not
intend to make a RESPA claim is the fact that she never included such
a
claim
in
her
24-page
complaint.
For
sure,
any
review
of
plaintiff’s complaints reveals that brevity is not one of her goals.
In other words, had plaintiff wanted to make a RESPA claim, she would
not have been content to rely on only a brief and cryptic mention of
that statute in a TRO motion.
Indeed, it is unlikely that plaintiff
would have been trying to assert federal claims, as she has shown no
desire to be in federal court, having twice filed her complaints in
state court, only to have them removed by the defendants each time.
Bolstering that inference is the fact that all of plaintiff’s present
eight counts revolve around wrongful foreclosure or fraud.
8
AO 72A
(Rev.8/82)
She
clearly intends to assert these state law claims, not claims based on
random federal statutes in a TRO motion.
Further, a RESPA claim would be anomalous as RESPA’s purposes
are to:
effect certain changes in the settlement process for
residential real estate that will result–-(1) in more
effective advance disclosure to home buyers and sellers of
settlement costs; (2) in the elimination of kickbacks or
referral fees that tend to increase unnecessarily the costs
of certain settlement services; (3) in a reduction in the
amounts home buyers are required to place in escrow
accounts established to insure the payment of real estate
taxes and insurance; and (4) in significant reform and
modernization of local recordkeeping of land title
information.
12 U.S.C. § 2601(b).
In other words, RESPA is aimed at facilitating
a smooth and informed mortgage procedure by providing the borrower
with information and by prohibiting exorbitant fees.
It has nothing
to do with foreclosure procedures. Yet, the crux of plaintiff’s
lawsuit here is that defendants do not have standing to foreclose
with respect to the Fox Hollow residence, not that she has had
problems with escrow, payment of fees for mortgage procedures, or any
other malady that RESPA seeks to cure.
Not surprisingly, then, the
unexplained reference to the RESPA statute in plaintiff’s motion for
a TRO offers no notice of what a RESPA claim might entail.
In summary, the Court will assume that the only possible sources
of federal question jurisdiction lie in a TILA claim or a
Federal
Trade Commission Act claim that might be lurking in plaintiff’s
9
AO 72A
(Rev.8/82)
complaint in this 2012 Action, and will address each in turn.
28
U.S.C. § 1331; Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
807-10 (1986).
A.
Plaintiff’s TILA Claims
Plaintiff alleges that defendants violated TILA by lending her
money at a lifetime annual percentage rate higher than that permitted
by the statute, that they are required to rescind her loan and refund
any payments she has made, and that they are seeking to enforce an
invalid security deed.
(2012 Action, Notice of Removal [1] at Ex. B
(Compl.), ¶ 9; 2012 Action, Mot. for TRO [2] at ¶¶ 7, 9-10.)
As the
magistrate judge explained in the 2010 Action, plaintiff’s TILA
claims are barred by the statute of limitations.
Indeed, this Court
has already dismissed those claims with prejudice in that previous
action.5 But to explain again: under TILA, a loan can be rescinded
within a three-day period from the date of the transaction.
U.S.C. § 1635(a).
15
This period is extended to three years if the
lender does not comply with the notice requirements of 12 C.F.R. §
226.23(a)(3). Smith v. Highland Bank, 108 F.3d 1325, 1326 (11th Cir.
1997).
A claim for damages under TILA has a one-year statute of
limitations that is subject to equitable tolling. 15 U.S.C. §§ 1635,
1640; Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 419 (1998); Ellis
5
For reasons unclear to this Court, the defendants did not move
to dismiss the TILA claim on res judicata grounds.
10
AO 72A
(Rev.8/82)
v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706-08 (11th Cir.
1998); Goldman v. Aurora Loan Servs., LLC, Civil Action No. 1:09-CV3337-RWS, 2010 WL 3842308, *3 (N.D. Ga. Sept. 24, 2010)(Story, J.).
Assuming arguendo that defendants did not comply with TILA’s
notice requirements, plaintiff’s claim for rescission expired in
2008, as she executed her loan in 2005.
Removal [1] at Ex. B (Compl.), ¶ 9.)
(2012 Action, Notice of
With respect to any claim for
damages, assuming arguendo that defendants concealed their alleged
TILA violation, plaintiff obtained a forensic mortgage evaluation in
2010 giving her knowledge of any wrongdoing and as such any suit
against defendants for civil liability under TILA expired in 2011.
See (2010 Action, Notice of Removal [1] at Ex. B (Compl.), at 47-50
(Forensic Mortgage Audit Rep.)) and Webb v. Suntrust Mortg., Inc.,
Civil Action No. 1:10-CV-0307-TWT-CCH, 2010 WL 2950353, *3-4 (N.D.
Ga. July 1, 2010)(Hagy, J.), adopted by, 2010 WL 2977950 (N.D. Ga.
July 23, 2010)(Thrash, J.).
Plaintiff’s TILA claim is thus barred
and is hereby, once again, DISMISSED WITH PREJUDICE.
B.
Plaintiff’s Federal Trade Commission Act Claim
Plaintiff also alludes to the Federal Trade Commission Act in
her Complaint.
disclosure
of
She claims that “Defendants provided inadequate
the
true
costs,
risks
and,
where
necessary,
appropriateness to the Borrower of a loan transaction in violation of
the Federal Trade Commission Act.”
11
AO 72A
(Rev.8/82)
(2012 Action, Notice of Removal
[1] at Ex. B (Compl.), ¶ 39.)
However, no private cause of action
exists under the Federal Trade Commission Act.
Lingo v. City of
Albany Dep’t of Cmty. & Econ. Dev., 195 Fed. App’x 891, 894 (11th
Cir. 2006)(“There is no private cause of action implied under the
Federal Trade Commission Act.”), cert. denied, 550 U.S. 945 (2007);
Fulton v. Hecht, 580 F.2d 1243, 1248 n.2 (5th Cir. 1978); Roberts v.
Cameron-Brown Co., 556 F.2d 356, 361 n.6 (5th Cir. 1977)(citing
Holloway v. Bristol-Myers Corp., 485 F.2d 986 (1973)).
Plaintiff’s
Federal Trade Commission Act claim thus fails and is hereby DISMISSED
WITH PREJUDICE.
III. DIVERSITY JURISDICTION
In addition to her federal claims, plaintiff also alleges
various state law claims.
The Court would ordinarily remand these
claims to state court after dismissal of the federal claims because
“[n]eedless decisions of state law should be avoided both as a matter
of comity and to promote justice between the parties, by procuring
for them a surer-footed reading of applicable law.”
United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
Here,
however,
defendants
also
claim
that
this
court
has
jurisdiction over plaintiff’s state law claims on the basis of
diversity.
Defendants acknowledge that the defendant law firm,
McCurdy & Candler, is a Georgia resident, as is plaintiff, meaning
12
AO 72A
(Rev.8/82)
that complete diversity of citizenship appears to be lacking.
Yet,
defendants argue that plaintiff fraudulently joined McCurdy & Candler
for purpose of defeating diversity jurisdiction.
defendants
argue,
then
this
defendant
must
be
If that is so,
disregarded
for
purposes of determining whether the parties are completely diverse.
“Fraudulent
joinder
is
a
judicially
created
doctrine
that
provides an exception to the requirement of complete diversity.”
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998).
The party claiming fraudulent joinder must prove it by clear
and convincing evidence.
Stillwell v. Allstate Inc. Co., 663 F.3d
1329, 1332 (11th Cir. 2011).
A defendant is fraudulently joined
“when there is no possibility that the plaintiff can prove a cause of
action against the resident (non-diverse) defendant.”
Triggs, 154
F.3d at 1287.
To determine whether there is a possibility of a cause of
action, the reviewing court must follow the forum state’s pleading
standards. Here those standards are found in Georgia law, which sets
less stringent pleading requirements than are applied under the
federal Rule 12(b)(6) standard.
See Ullah v. BAC Home Loans Serv.
LP, ___ Fed. App’x ___, No. 12-12557, 2013 WL 4267188, *2 (11th Cir.
Aug. 16, 2013).
In Georgia, the plaintiff need not plead “a winning
case against the allegedly fraudulent defendant; he need only have a
possibility
of
stating
a
valid
13
AO 72A
(Rev.8/82)
cause
of
action”
against
that
defendant.
Trigg, 154 F.3d at 1287.
Further, “fair notice of the
nature of the claim is all that is required, and the elements of most
claims can be pled in general terms.”
Ullah, 2013 WL 4267188, at *2
(citing Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 89 (2011)).
In Ullah, the Eleventh Circuit held that a non-diverse law firm
defendant
was
not
fraudulently
joined
because
the
plaintiff
sufficiently alleged collection of excess fees by the law firm and
loan servicers even though the plaintiff did not specifically refer
to the law firm by name.
Id., at *3-4.
Consequently, the court
found that the defendants had not proven fraudulent joinder and that
diversity jurisdiction was lacking.
For this reason, it vacated the
district court’s order granting defendants’
directed a remand of the action.
motions to dismiss and
Id., at *4.
In this case, it is less clear whether defendants should lose on
a claim of fraudulent joinder under the Ullah/Stillwell standard.
Plaintiff only refers to McCurdy & Candler once in her complaint,
alleging that it is prohibited from working with Fannie Mae and
Freddie Mac, that it is subject to national foreclosure fraud
proceedings, and that it aided and abetted foreclosure of her
residence.
(2012 Action, Notice of Removal [1] at Ex. B (Compl.), ¶
15.) Her other allegations do not allege any tortious conduct by the
law firm.
Yet, as indicated in Ullah, this Court should give plaintiff an
14
AO 72A
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opportunity to amend her allegations to determine whether there is no
possibility that plaintiff can prove a cause of action against the
non-diverse defendant, McCurdy & Candler.
Plaintiff is therefore
ORDERED to restate her claim against McCurdy & Candler in order to
try to meet the “possibility of stating a cause of action” standard,6
by TUESDAY, OCTOBER 15, 2013.
See FED. R. CIV. P. 12(e).
In doing
so, plaintiff should state clearly what her claim is against this law
firm and what facts she alleges to believe that such a claim against
the firm is viable.
Defendants will then have until THURSDAY, OCTOBER 31, 2013,
either to reassert, and adequately explain, its basis for arguing for
that it has can show fraudulent joinder by clear and convincing
evidence, or to indicate that it no longer so contests the joinder of
this defendant.
Absent a showing by defendants of fraudulent
joinder, plaintiff’s state law claims will be remanded to the court
in which she originally filed her lawsuit.
6
Plaintiff is also free to attempt to state a viable RESPA
action in this amended complaint, if she chooses. That course of
action would not, however, seem wise for the plaintiff as it would
likely keep her in federal court, where she apparently does not wish
to be.
15
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IV.
PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
As noted above, when filing her complaint in state court,
plaintiff also filed an emergency motion requesting a “restraining
order
or
an
ex
parte
temporary
restraining
defendants from conducting a foreclosure sale.
order”
prohibiting
(2012 Action, Mot.
for Temporary Restraining Order [2].) In order to obtain a temporary
restraining order, a plaintiff must show (1) a substantial likelihood
of ultimate success on the merits; (2) that the temporary restraining
order is necessary to prevent irreparable injury; (3) that the
threatened injury outweighs the harm the temporary restraining order
would
inflict
on
the
non-movant;
and
(4)
that
restraining order would serve the public interest.
the
temporary
Ingram v. Ault,
50 F.3d 898, 900 (11th Cir. 1995).
Here, plaintiff has shown no likelihood of success. The federal
claims in her first complaint were dismissed with prejudice. She has
recycled her state-law claims, which appear to have little merit.
Further, she has failed to show irreparable injury or that an
injunction would serve the public interest.
As stated above,
plaintiff quit making her mortgage payments over 5 1/2 years ago.7
Assuming that the defendants have again delayed foreclosure based on
her lawsuit, plaintiff has presumably been living rent-free for that
7
As noted, she made only one payment in the interim period,
approximately four and one-half years ago.
16
AO 72A
(Rev.8/82)
entire
period
of
time.
She
has
been
able
to
maintain
this
advantageous arrangement only because she has filed a legal action
whenever the defendants seek foreclosure.
Yet, as noted, up to this
point, there has been scant showing that there is any merit to these
legal actions.
For these reasons, the granting of injunctive relief
to stop any foreclosure action against plaintiff would not be
equitable.
Accordingly,
plaintiff’s
restraining order is DENIED.
motion
for
a
temporary
See Kate Aspen, Inc. v. Fashioncraft-
Excello, Inc., 370 F. Supp. 2d 1333, 1336 (N.D. Ga. 2005) (Martin,
J.)
(denying
temporary
restraining
order
for
failure
to
show
likelihood of success on the merits).
CONCLUSION
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE
plaintiff’s emergency motion for a temporary restraining order [2]
and GRANTS IN PART AND DENIES WITHOUT PREJUDICE IN PART defendants’
motions to dismiss [3, 6].
Plaintiff is ordered to restate her
claims against McCurdy & Candler by TUESDAY, OCTOBER 15, 2013.
Defendants are ordered to respond to plaintiff’s restated claim and
to show fraudulent joinder by THURSDAY, OCTOBER 31, 2013.
17
AO 72A
(Rev.8/82)
SO ORDERED, this 29th day of September, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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