Kenney et al v. CitiMortgage, Inc. et al
Filing
29
MEMORANDUM AND ORDER granting Defendant Millsap & Singer, LLC's 10 Motion to Dismiss. Signed by District Judge Julie A. Robinson on 4/28/15. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY A. KENNEY and
BRENDA M. KENNEY,
)
)
)
Plaintiffs,
)
)
v.
)
)
CITIMORTGAGE, INC. and
)
MILLSAP & SINGER, LLC,
)
)
Defendants.
)
___________________________________ )
Case No. 14-2436-JAR
MEMORANDUM AND ORDER
Plaintiffs Gary Kenney and Brenda Kenney bring this action against Defendants seeking
damages for violations of the Fair Debt Collection Practices Act (“FDCPA”), abuse of process,
and trespass.1 This matter is before the Court on Defendant Millsap & Singer, LLC’s
(“Millsap”) Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6) (Doc.
10). For the reasons explained in detail below, the Court grants Defendant’s motion.
I.
Rule 12(b)(6) Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed to
be true, that “raise a right to relief above the speculative level” and must contain “enough facts to
state a claim to relief that is plausible on its face.”2 Under this standard, “the mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that this plaintiff has a
1
Defendant CitiMortgage removed this case from the District Court of Leavenworth County, Kansas, Case
No. 14-cv-296, with Defendant Millsap’s consent. Doc. 1.
2
Bell Atl. Corp v. Twombly, 550 U.S 544, 554 (2007).
reasonable likelihood of mustering factual support for these claims.”3 “While the 12(b)(6)
standard does not require that Plaintiff establish a prima facie case in [his] complaint, the
elements of each alleged cause of action help to determine whether Plaintiff has set forth a
plausible claim.”4 The allegations must be enough that, if assumed to be true, the plaintiff
plausibly (not just speculatively) has a claim for relief.5 As the Supreme Court explained, “[a]
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause
of action will not do. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’”6 Additionally, “[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.”7
In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to assessing the legal
sufficiency of the allegations contained within the four corners of the complaint.8 But in
considering the complaint in its entirety, the court also examines any documents “incorporated
into the complaint by reference,”9 and documents attached to the complaint.10
3
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
4
Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
5
Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir. 2008). “‘Plausibility’ in this context must refer
to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’”
Id. (internal citations omitted).
6
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557).
7
Id.
8
Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008).
9
Telltabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
10
Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012) (quotation and citations omitted).
2
II.
Factual Background
Drawing all reasonable inferences in favor of Plaintiffs, the following facts are taken
from the Petition.
On October 5, 2007, Plaintiffs Gary and Brenda Kenney executed a Note and Mortgage
in favor of Citibank, N.A. (“Citibank”) for a loan in the principal amount of $75,000.00. The
Mortgage in favor of Citibank (the “Citibank Mortgage”) was recorded October 17, 2007, and
pledged as collateral Plaintiffs’ real property commonly known and numbered as 126 Ferncliff
Street, Lansing, Kansas (the “Property”).
On September 21, 2011, Plaintiffs executed a Note and Mortgage in favor of Citibank for
a loan in the principal amount of $65,610.00. The Mortgage was recorded October 14, 2011, in
the Leavenworth County Records, State of Kansas. This Mortgage also pledged the Property as
collateral for the loan. On September 21, 2011, the Mortgage was assigned to Defendant
CitiMortgage, Inc. (“CitiMortgage”) and was recorded on April 30, 2012. On October 17, 2011,
the Citibank Mortgage was subordinated to the CitiMortgage Mortgage by way of a written
Subordination Agreement. As a result, the CitiMortgage Mortgage was a first lien on the
Property and the Citibank Mortgage was a second lien on the Property.
Plaintiffs subsequently defaulted on their mortgage loan obligations for both the
CitiMortgage Mortgage loan and the Citibank Mortgage loan. Citibank commenced foreclosure
proceedings on its junior Citibank Mortgage, Case Number 12CV272, in the District Court of
Leavenworth County, Kansas. In June 2012, Plaintiffs filed for Chapter 7 bankruptcy relief and
on February 1, 2013, received their discharge in bankruptcy.11
11
The Court takes judicial notice that Plaintiffs’ bankruptcy schedules filed in Case No. 12-21686, reflect in
the Statement of Intention section that the Property will be surrendered.
3
On June 10, 2013, CitiMortgage, through its counsel Millsap, filed a Motion to Intervene
that contained a typographical error, citing to case number 12cv22, rather than 12CV272. The
motion also referenced exhibits that were not attached to the motion. Although they were
represented by counsel at the time, a copy of the Motion was sent to Plaintiffs, along with a
cover letter, dated June 4, 2013. Confused by the contents of the letter, Gary Kenny called
Millsap and asked to speak with Chad Doornink, the person who had signed the pleadings.
Kenney indicated he was still living in the home and wanted to know the status of the
foreclosure. Doornink stated that he expected a response from the court on the motion within the
next seven days and that Plaintiffs could be evicted from the Property in approximately twentyone days.
On June 14, 2013, the state court, without hearing, granted the Motion and entered an
Order to Intervene. Plaintiffs contacted their counsel, and on June 17, 2013, Plaintiffs’ counsel
contacted Doornink, outlining the sequence of events. On June 18, 2013, Plaintiffs’ counsel
received two letters from Millsap that were identical to the letters sent to Plaintiffs, that
requested the enclosed pleadings be filed with the court. The order was now titled Order to
Intervene and for Leave to Answer out of Time, although the text of the order was unchanged.
On June 19, Plaintiffs’ counsel demanded the Order be withdrawn. Millsap agreed to set aside
the order to intervene and the June 14 intervention order was then set aside by the state court on
June 24, 2013. On August 6, 2013, Millsap withdrew its motion to intervene.
On July 12, 2013, CitiMortgage engaged Safeguard Properties to secure Plaintiffs’
Property, and Safeguard entered into and secured Plaintiffs’ residence without prior notification
to Plaintiffs or their counsel and attempted to deny them access to the premises. On July 19,
4
2013, Safeguard re-entered the premises and attempted to deny Plaintiffs access.
Plaintiffs filed suit on August 11, 2013, asserting causes of action for violating the
FDCPA against Millsap, and against CitiMortgage and Millsap for abuse of process and trespass.
III.
Discussion
Defendant Millsap moves to dismiss Plaintiffs’ Petition for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). The Court addresses each of the three counts in turn.12
A.
Count 1 FDCPA
1.
Statute of Limitations
Pursuant to 15 U.S.C. § 1692k(d), a claim for relief under the FDCPA must be brought
“within one year from the date on which the violation occurs.” Defendant maintains that
Plaintiffs’ FDCPA claim is barred by the one-year statute of limitations. Defendant argues that
Plaintiffs cannot identify any alleged violation of the FDCPA that occurred after August 11,
2013—one year before Plaintiffs filed their Petition—and that all of the allegations of
wrongdoing occurred in June of 2013.
“For statute-of-limitations purposes, discrete violations of the FDCPA should be
analyzed on an individual basis.”13 “The rule should not be confused, however, with a
determination that defendants’ collection activities amounted to a continuing violation, which
generally allows later claims to bring earlier actions within the statute of limitations.”14 Count 1
12
Defendant’s suggestion that the Court treat its motion as unopposed is not well taken. Plaintiffs waited
thirteen days after the Court granted their motion to file their response out of time. Although the Court directed
Plaintiffs to “immediately file” their response, it did not think it was necessary to impose a firm deadline to do so, as
the proposed response was attached as an exhibit to Plaintiffs’ Memorandum in Support of its Motion for Extension
of Time to File Response. Doc. 20, Ex. A.
13
Solomon v. HSBC Mortg. Corp., 395 F. App’x 494, 497 n.3 (10th Cir. 2010) (collecting cases).
14
Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
5
alleges four violations of the FDCPA by Millsap: 1) the letter dated June 4, 2013 failed to
contain the warning, as required by 15 U.S.C. § 1692(e)(11); 2) Millsap failed to provide a
validation notice within five days to the Plaintiffs as required by 15 U.S.C. § 1692g; 3) Millsap’s
oral communication with Plaintiff Gary Kenney gave a false impression of the legal status of the
debt, in violation of 15 U.S.C. § 1692e(2) and/or was false, deceptive, or misleading in violation
of 15 U.S.C. § 1692e and e(10); and 4) Millsap communicated with Plaintiffs when it knew they
were represented by counsel, in violation of 15 U.S.C. § 1692a(2).
Plaintiffs contends that “this case involves a continuous and ongoing pattern of improper
conduct that intends to take advantage of the Plaintiffs in litigation over their most precious
possession, their home.” These “repeated and continuous violations of the FDCPA” include:
mailing defective motions to intervene directly to Plaintiffs when aware that they were
represented by counsel and requesting that Plaintiffs file them with the court (June 4, 2013);
when, in response to these defective motions Plaintiff Gary Kenney contacted Millsap, he was
given incorrect, misleading, and false information, not withstanding Plaintiff’s representation by
counsel (no date specified, but in response to the June 4 letter); presenting an order granting the
defective motion to intervene to the state court without obtaining the approval of Plaintiffs’
counsel (June 2013); when these violations were brought to Millsap’s attention, it reissued the
same letters with a corrected case number, but with the same date and defective motion to
intervene and proposed order (June 2013); Millsap attended the Case Management Conference in
the foreclosure case, indicating that it had not decided if it would continue to attempt to
intervene (no date); and Millsap took action to assert CitiMortgage’s claim extrajudicially by
retaining Safeguard Properties to enter the Plaintiffs’ residence (July 12 and 19, 2013).
6
Even if Plaintiffs are correct that Millsap’s activities constitute an ongoing violation, they
have not alleged any activities that occurred after August 11, 2013. All of the correspondence
and communications with Plaintiffs occurred in June 2013. The allegations that CitiMortgage
retained Safeguard to enter the premises occurred in July 2013. And, the last event by Millsap is
alleged to have occurred when Millsap withdrew the Motion to Intervene in Citibank’s
foreclosure action on August 6, 2013, more than one year from the date of the Petition. Thus,
Plaintiffs’ FDCPA claim is untimely.15
2.
Debt Collector/Debt Collection
Defendant argues that even assuming the statute of limitations period has not run, Millsap
is not a debt collector for purposes of the FDCPA. 15 U.S.C. § 1692a(6) defines a “debt
collector” as
[A]ny person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be
owed or due another . . . . For the purpose of section 808(6) [15
U.S.C. § 1692f(6)], such term also includes any person who uses
any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of
security interests.
Millsap contends that it is clear from the Petition that it was acting on behalf of CitiMortgage to
enforce a security agreement, the CitiMortgage Mortgage. Millsap further contends that since
Plaintiffs had received their discharge in bankruptcy, the only remaining remedy to CitiMortgage
was to enforce its mortgage in the Property in rem. Thus, Millsap argues, because it was not
15
Plaintiffs suggest that application of the one-year statute of limitations when a case is in litigation “would
be an unwieldy requirement.” Plaintiffs do not cite, nor was the Court able to find, authority that a FDCPA action
should be tolled under these circumstances.
7
acting to collect a debt, the foreclosure proceedings do not fall within the terms of the FDCPA.
Millsap further argues that it did not file a petition for judicial foreclosure on behalf of
CitiMortgage, but merely sought leave to intervene in the pending Citibank foreclosure action,
which leave was subsequently set aside by the court and withdrawn.
Courts are not unanimous in their positions on whether law firms engaged to foreclose on
mortgages are outside of the definition of “debt collection” by a “debt collector” for FDCPA
purposes.16 The Tenth Circuit addressed this issue, without resolving it, in Maynard v. Cannon.17
The court addressed the question of “whether a non-judicial foreclosure qualifies as debt
collection activity under the FDCPA.”18 After noting that “a non-judicial foreclosure does not
result in the mortgagor’s obligation to pay money—it merely results in the sale of the property
subject to a deed of trust,”—the court proceeded to examine how other jurisdictions had
addressed the issue.19 The court found that “several district courts have distinguished between
judicial and non-judicial foreclosures and concluded that the FDCPA applies to the former but
not the latter,” typically because the latter does not result in a personal judgment against the
mortgagor, and does not require the consumer to pay any money.20 It contrasted these cases with
16
Compare Warren v. Countrywide Home Loans, Inc., 342 F. App’x 458, 460 (11th Cir. 2009) (holding
generally, foreclosing on a security interest is not debt collection activity for purposes of § 1692e, and therefore, one
who forecloses on property is not a debt collector under the FDCPA), with Wilson v. Draper & Goldberg, L.L.C.,
443 F.3d 373, 376–78 (4th Cir. 2006) (holding excluding all foreclosures from the definition of “debt collections”
creates and “enormous” and unintended “loophole” in the FDCPA, and that attorneys hired to foreclose on
residential mortgages are not by definition exempt from the FDCPA’s “debt collector” provisions).
17
401 F. App’x 389, 394–95 (10th Cir. 2010) (unpublished).
18
Id. The primary distinction between “judicial” foreclosures and “non-judicial” foreclosures concerns
whether the proceeding results in a deficiency judgment against the mortgagor. Id. at 391–92.
19
Id. at 394–95.
20
Id. (ollecting cases).
8
a non-foreclosure case from the Seventh Circuit that rejected a formulaic examination of the
effect of the creditor’s activities in determining whether “debt collection” was taking place, and
instead required an examination of various factors to determine whether “the true purpose” of
communications was “to collect the debt—whether through settlement or otherwise—by placing
pressure on the consumer.”21 The court concluded that “the initiation of foreclosure proceedings
in this case was intended to encourage Maynard to pay her debt—indeed, that is precisely what
happened when the threat of foreclosure spurred settlement.”22 After framing the issue, however,
the Tenth Circuit expressly declined to resolve it, noting that even if otherwise covered by the
FDCPA, the creditor’s communications did not violate the statute.23
In Kansas, foreclosure actions are judicial in nature, and the sale preserves to the creditor
the right to collect any deficiency in the loan amount personally against the mortgagor.24
Nevertheless, Millsap argues that it did not seek to collect a debt under the FDCPA. The
purpose of a “debt collector” is to collect a “debt,” a term also defined by the FDCPA. A “debt”
is “any obligation or alleged obligation of a consumer to pay money arising out of a transaction
in which the money, property, insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes. . . .”25 Here, pursuant to Plaintiffs’
21
Id. at 395 (citing Gburek v. Litton Loan Servicing, LP, 614 F.3d 380 (7th Cir. 2010)).
22
Id.
23
Id. at 395–98; accord Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1239 (10th Cir. 2013)
(adopting Maynard’s discussion of the issue as persuasive, but declining to decide whether a non-judicial foreclosure
constitutes collection of a debt within the meaning of the FDCPA, instead analyzing whether plaintiff’s claims
sufficiently stated a claim that defendant violated the FDCPA).
24
See K.S.A. § 60-2414.
25
15 U.S.C. § 1692a(5).
9
Chapter 7 bankruptcy discharge, they are not liable for any deficiency between the price secured
at foreclosure and the amount owed on the CitiMortgage Mortgage or Citibank Mortgage.26
Thus, Millsap argues that its actions could not have been for the collection of a debt, but rather,
only for enforcement of a security interest.
The Court agrees. Because Millsap through intervention in the pending foreclosure
action did not seek to collect a “debt” as defined by the FDCPA, the Court finds that its alleged
conduct does not fall under the FDCPA as a matter of law.27 Defendant’s motion to dismiss
Count 1 is granted.28
B.
Count 2—Abuse of Process
“Abuse of process is a comparatively narrow tort that rests on use of legal process, such
as a petition and summons, otherwise properly issued for “‘an end other than that which it was
designed to accomplish.’”29 “The party employs the process to accomplish a purpose that could
26
11 U.S.C. § 727.
27
See Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 23 (1st Cir. 2002) (stating that “[t]he FDCPA’s
definition of a debt is broad, but it requires at least the existence or alleged existence of an obligation to pay money”
and that it would “contradict the plain language” of the statute if a discharged debt satisfied the requirements of the
FDCPA); Shaw v. Bank of Am., NA, No. 10-cv-11021, 2015 WL 224666, at *6 (D. Mass. Jan. 15, 2015) (holding
bank’s foreclosure proceedings did not seek to collect a debt under the FDCPA because plaintiff had received
discharge in bankruptcy); Redjai v. Nationstar Mortg. LLC, No. SACV 14-01626, 2014 WL 7238355, at *3 n.1
(C.D. Cal. Dec. 15, 2014) (noting that letter alone would not support FDCPA violation where letter stated that if
plaintiff was in bankruptcy or had received a discharge in bankruptcy, the letter was not an attempt to collect a debt).
28
Plaintiffs attach to their response Exhibits D and E for the proposition that there was an attempt to collect
a debt. These documents, which appear to be an Annual Escrow Analysis dated December 18, 2013, requests for
insurance information, and a satisfaction of mortgage dated April 2, 2014, were all issued by CitiMortgage and are
not incorporated by reference, attached to the Petition, or referred to in the Petition and central to Plaintiffs’ claim
against Defendant Millsap, and thus the Court does not consider them in deciding the instant motion to dismiss.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
29
Jones v. Noblit, 260 P.3d 1249, 2011 WL 4716337, at *10 (Table) (Kan. Ct. App. Oct. 7, 2011) (quoting
Jackson & Scherer, Inc. v. Washburn, 496 P.2d 1358, 1366 (Kan. 1972)).
10
not be achieved as the end result of the judicial proceeding.”30 Under Kansas law, the elements of
an action for abuse of process are 1) illegal and improper use of process; 2) an ulterior purpose in
making such use; and 3) damage to the plaintiff resulting from the irregular and improper use.31
An action for abuse of process differs from an action for malicious prosecution of a civil suit—in
abuse of process, “the gist of the tort is not commencing an action or causing process to issue
without justification, but misusing or misapplying process justified in itself, for an end other than
that which it was designed to accomplish.”32 Thus, in order to show abuse of process, “[t]wo
elements are necessary . . . one the existence of an ulterior purpose, and second, an act in the use
of such process not proper in the regular prosecution of the proceeding.”33 Even if a civil action
is begun without probable cause, that alone does not establish a claim for abuse of process.34
The Kansas Court of Appeals offered a hypothetical example of what might constitute a
claim for abuse of process:
For example, if Widget Corp. of America unsuccessfully tried to
merge with Widgets R Us of Boise, Idaho, to gain access to that
company’s formula for a new type of widget adhesive and then filed
a dubious antitrust suit against Widgets R Us in an inconvenient
forum as a means of bludgeoning the company into reconsidering, a
claim for abuse of process might well lie. There, the suit became a
weapon to force a merger—a corporate decision wholly
unconnected with the ostensible purpose of the legal action or any
30
Id.; see Watson v. Snodgrass, 245 P.3d 12, 2011 WL 135035, at *3 (Table) (Kan. Ct. App. Jan. 7, 2011).
31
Jones, 2011 WL 4716337 at *10 (citing Porter v. Stormont-Vail Hosp., 621 P.2d 411, 416 (Kan. 1980)).
32
Vanover v. Cook, 260 F.3d 1182, 1191 (10th Cir. 2001) (quoting Ahring v. White, 131 P.2d 699, 702
(Kan. 1942)): see also Advantor Capital Corp. v. Yeary, 136 F.3d 1259, 1264 (10th Cir. 1998) (“Malicious
prosecution is concerned with maliciously causing process to issue, while abuse of process is concerned with the
improper use of process after it has been issued.” (citations and quotations omitted)).
33
Vanover, 260 F.3d at 1191 (quoting Welch v. Shepherd, 219 P.2d 444, 447 (Kan. 1950)).
34
Id.
11
remedy that might be obtained in that action.35
The facts in this case do not demonstrate that kind of ulterior purpose. In their Petition,
Plaintiffs claim that the Motion to Intervene issued by Defendants was improper and served on
Plaintiffs; that the service was intended to cause harassment, great inconvenience and/or great
hardship to Plaintiffs; and that they suffered damages. Plaintiffs’ argument that Millsap’s use of
process was improper focuses on the mistakes and typographical errors in the motions,
contending that these errors were “reckless or willful.” But as Millsap points out, Plaintiffs
readily admit that CitiMortgage had a valid mortgage lien on the Property; that Citibank had
initiated judicial foreclosure proceedings on the Property; and that they were in default on both
mortgages. Millsap’s service and filing of the motion and order for leave to intervene, albeit with
typographical errors and omission of attachments, was used in conformity with the relief
commonly sought in foreclosure proceedings—to enforce its mortgage in the proceedings
initiated by Citibank. There are no facts alleged to support an allegation that Millsap’s admittedly
“sloppy” actions and pleadings were designed toward an improper end, such as a leverage for
payment of the discharged obligation.36 Indeed, once Plaintiffs’ counsel contacted Millsap about
the motion and order to intervene, it was set aside and withdrawn. Finally, although they
generally allege that they have been damaged, Plaintiffs fail to allege how or why they were
35
Jones, 2011 WL 4716337, at *10 (citing Wozniak v. Pennella, 862 A.2d 539, 548–49 (N. J. 2004)
(upholding a verdict for plaintiff, a residential tenant, on an abuse of process claim where he had filed a civil action
against his landlord who, in turn, brought a criminal charge of false swearing against him and then offered to make
the charge “go away” if the civil action were dismissed); Restatement (Second) Torts § 682, Cmt. b (1964) (“The
usual case of abuse of process is one for some form of extortion, using the process to put pressure upon the other to
compel him to pay a different debt or to take some other action or refrain from it”).
36
See Porter v. Stormont-Vail Hosp., 621 P.2d 411, 421–22 (Kan. 1980) (holding that a claim for abuse of
process would not lie based on postjudgment collection procedures that plaintiff contended were harassing and
abusive but which conformed to the statutory procedures).
12
damaged by Millsap’s attempt to intervene on behalf of CitiMortgage. Defendant’s motion to
dismiss Count 2 is granted.
C.
Count 3—Trespass
Although trespass has historical roots in the criminal law, it is also recognized as a tort,
compensable in damages; generally, every entry upon the land of another, except by consent, is a
trespass, except upon consent of the possessor of the land.37 Count 3 alleges that “Defendants
intentionally intruded upon the Property,” and that “Plaintiffs suffered damages.” As Millsap
points out in support of dismissal of Count 3, Plaintiffs fail to allege any trespass on the part of
Millsap. Instead, they specifically assert that it was Safeguard Properties that trespassed on the
Property and that Safeguard was hired by CitiMortgage. Plaintiffs did not allege that Millsap was
involved in retaining Safeguard or otherwise involved in the alleged trespass on the Property.
Plaintiffs’ assertion in their response that additional discovery is needed to determine whether
Millsap was involved in the alleged trespass does not cure their failure to state a plausible claim
against Millsap, and the motion to dismiss Count 3 is granted.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Millsap & Singer,
LLC’s Motion to Dismiss (Doc. 10) is GRANTED.
IT IS SO ORDERED.
Dated: April 28, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
37
Belluomo v. KAKE TV & Radio, Inc., 596 P.2d 832, 840 (Kan. Ct. App. 1979) (citations omitted).
13
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?