Wheeler et al v. Citibank, N.A. et al

Filing 9

NOTICE AND ORDER TO SHOW CAUSE: Plaintiffs' Show Cause Response due by 12/1/2014. Signed by District Judge Julie A. Robinson on 11/18/2014. Mailed to pro se plaintiffs Roger L. Wheeler and Judith A. Wheeler by regular and certified mail; Certified Tracking Numbers: 7002 2030 0000 9348 6813 and 7002 2030 0000 9148 6820. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROGER L. WHEELER, and
JUDITH A. WHEELER,
Plaintiff,
vs.
CITIBANK, N.A., FAY SERVICING,
and STATEBRIDGE COMPANY,
Defendants.

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Case No. 14-2524-JAR-TJJ

NOTICE AND ORDER TO SHOW CAUSE
TO PLAINTIFFS:
Plaintiffs Roger and Judith Wheeler, proceeding pro se, filed this action against
Defendants Citibank, N.A., Fay Servicing, and Statebridge Company, in Johnson County,
Kansas District Court, alleging seven federal and state law claims surrounding the foreclosure of
their home. Defendant Citibank removed the case on October 16, 2014, and then filed a Motion
to Dismiss (Doc. 6) on October 24, 2014. Citibank argues in its motion to dismiss that the seven
claims set forth in the Petition fail to include sufficient factual allegations to state plausible
claims for relief under Fed. R. Civ. P. 12(b)(6). Specifically, Citibank complains that there are
no factual allegations about its specific conduct in the Petition. Plaintiff failed to file a response
to the motion to dismiss and the time to do so has expired.1 Under D. Kan. R. 7.4,
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will

1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).

consider and decide the motion as an uncontested motion.
As a result of Plaintiff’s failure to respond, the Court may grant Defendants’ motion to dismiss
as uncontested.
Moreover, Plaintiffs bear the burden of alleging “enough facts to state a claim to relief
that is plausible on its face.”2 Although a complaint filed by a pro se party proceeding in forma
pauperis must be given a liberal construction,3 even under this standard, a court need not accept
as true those allegations that are conclusory in nature.4 A pro se litigant’s “conclusory
allegations without supporting factual averments are insufficient to state a claim upon which
relief can be based.”5 Plaintiff has not alleged facts from which one could plausibly find liability
on the seven claims listed in the Petition. The Petition contains no more than a formulaic
recitation of claims without alleging non-conclusory supporting facts that could give rise to
plausible claims.
The Court is mindful that “dismissal of a pro se complaint for failure to state a claim is
proper where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.”6 However, the Court need not allow an
opportunity to amend if “it is patently obvious that the plaintiff could not prevail on the facts

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)
(stating Twombly expounded the pleading standard for all civil actions); Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008) (stating and applying Twombly standard for dismissing a complaint for stating no claim for relief).
3

Haines v. Kerner, 404 U.S. 519, 520 (1972).

4

Erickson v. Pawnee Cnty. Bd. of Cnty. Com’rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001).

5

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

6

Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (quotation marks and citations omitted).

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alleged, and allowing him an opportunity to amend his complaint would be futile.”7 “A
proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”8
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs show cause in
writing to this Court by December 1, 2014 why this case should not be dismissed with
prejudice for failure to respond and for failure state a claim upon which relief may be
granted and why amending the complaint would not be futile.
IT IS SO ORDERED.
Dated: November 18, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

7

See Hall, 935 F.2d at 1109–10.

8

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

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