Bigler et al v. U.S. Bank Trust
MEMORANDUM AND ORDER granting 3 Motion to Dismiss. This case is dismissed without prejudice. Signed by District Judge Daniel D. Crabtree on 5/31/2017. Mailed to pro se party Jody Ann and Everett Bigler by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EVERETT BIGLER, et al.,
Case No. 16-cv-4194-DDC-KGS
U.S. BANK TRUST,
MEMORANDUM AND ORDER
Plaintiffs filed this action pro se on September 28, 2016, in the Third Judicial District
Court of Shawnee County, Kansas. In their petition, plaintiffs allege that defendant U.S. Bank
Trust violated federal laws, including the Truth in Lending Act (“TILA”) and the Home
Ownership and Equity Protection Act (“HOEPA”). Plaintiffs assert they were subject to
defendant’s predatory lending practices, and suffered injuries as a result. Defendant removed the
case to federal court on December 30, 2016. Plaintiffs have been absent since filing suit. Their
absentee status manifested itself in several ways. For instance, they have defaulted on their
obligation under our rules to file timely responses to defendant’s Motion to Dismiss (Doc. 3) and
the court’s Order to Show Cause (Doc. 7).
On April 7, 2017, this court issued an Order to Show Cause directing plaintiffs to submit
a written explanation to the court why it should not consider and rule on defendant’s motion as
uncontested under D. Kan. Rule 7.4(b). The court directed plaintiffs to respond by April 13,
2017. That deadline has passed, so the court rules on defendant’s Motion.
A. Failure to Respond
D. Kan. Rule 7.4(b) provides: “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” absent a showing of excusable neglect. “If a responsive brief or
memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.” D. Kan. Rule 7.4(b). “Ordinarily,
the court will grant the motion without further notice.” Id.
Although the court could grant defendant’s motion under Rule 7.4(b) without further
discussion, the court also rules on the motion to dismiss based on its merits. E.g., Gee v. Towers,
No. 16-2407, 2016 WL 4733854, *1 (D. Kan. Sept. 12, 2016) (dismissing complaint under Rule
7.4(b), but also considering motion to dismiss on its merits).
B. Motion to Dismiss
Defendant moves to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) for
“failure to state a claim upon which relief can be granted.” Rule 8(a)(2) provides that a
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Although this rule “does not require ‘detailed factual allegations,’” it demands
more than “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To 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.’” Id. (quoting Twombly,
550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009)
(quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
On a motion to dismiss under Rule 12(b)(6)—like the one at issue here—the court
assumes that a complaint’s factual allegations are true, but need not accept mere legal
conclusions as true. Id. at 1263. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not enough to state a claim for relief. Iqbal, 556
U.S. at 678. In addition to the complaint’s factual allegations, the court also may consider
“attached exhibits and documents incorporated into the complaint by reference.” Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).
C. Pro Se Plaintiff
Because plaintiffs bring this lawsuit pro se, the court construes their pleadings liberally
and holds them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not assume the role of their
advocate. Id. Also, plaintiffs’ pro se status does not excuse them from “the burden of alleging
sufficient facts on which a recognized legal claim could be based.” Id. Nor are plaintiffs
relieved from complying with the rules of the court or facing the consequences of
noncompliance. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
Plaintiffs’ Petition consists of only three sentences. First, plaintiffs ask the court to hold
defendant accountable for violating two federal laws—the TILA and the HOEPA. Second,
plaintiffs assert that defendant engaged in predatory lending techniques. Finally, plaintiffs
request punitive damages for mental and physical injuries.
Plaintiffs’ Petition fails to state a claim upon which relief can be granted. Liberally
construing the Petition, plaintiffs allege that defendant violated the TILA and the HOEPA. But
plaintiffs have not alleged any facts demonstrating how defendant violated these laws. And
plaintiffs have not alleged any facts from which the court could conclude that defendant had a
relationship with plaintiffs that could permit defendant to violate the TILA or the HOEPA and
give the plaintiffs a right to recover. See Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1179
(10th Cir. 2012) (“TILA requires lenders to provide borrowers with certain clear and accurate
disclosures, and lenders face criminal penalties and damages for noncompliance”; “HOEPA is
just an amendment to TILA itself.”) Plaintiffs have not alleged that they borrowed money from
defendant. In short, plaintiffs have not pleaded a claim with enough factual content to allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The court thus dismisses this case without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion to
Dismiss (Doc. 3) is granted and this case is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 31st day of May, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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