Duncan et al v. CitiMortgage, Inc. et al

Filing 21

ORDER adopting 17 Report and Recommendations, granting 3 Motion to Dismiss for Failure to State a Claim, granting 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Thomas W. Thrash, Jr on 1/15/14. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BRENDALYNNE DUNCAN, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:13-CV-1493-TWT

CITIMORTGAGE, INC., et al.,
Defendants.

ORDER

This is an action for wrongful foreclosure. It is before the Court on the Report
and Recommendation [Doc. 17] of the Magistrate Judge recommending granting the
Defendants’ Motions to Dismiss [Doc. 3 & 6]. The Plaintiffs’ Objection that the
Magistrate Judge applied the wrong pleading standard is totally without merit. A
complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts
alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss
for failure to state a claim, however, even if it is “improbable” that a plaintiff would
be able to prove those facts; even if the possibility of recovery is extremely “remote
and unlikely.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citations

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and quotations omitted). In ruling on a motion to dismiss, the court must accept
factual allegations as true and construe them in the light most favorable to the
plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness
Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also Sanjuan v.
American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)
(noting that at the pleading stage, the plaintiff “receives the benefit of imagination”).
The Plaintiffs fail to allege facts showing a plausible claim for relief. The Court
approves and adopts the Report and Recommendation as the judgment of the Court.
The Defendants’ Motions to Dismiss [Doc. 3 & 6] are GRANTED.
SO ORDERED, this 15 day of January, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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