Gietzen v. Beneficial Mortgage Corporation
MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Failure to State a Claim. Plaintiff's claim of conversion and negligence are hereby dismissed for failure to state a claim upon which relief can be granted. Plaintiff's breach of contract claim is hereby dismissed as barred by the statute of limitations. Signed by District Judge Richard D. Rogers on 4/9/2013.Mailed to pro se party Mark S. Gietzen by regular mail (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK S. GIETZEN,
BENEFICIAL MORTGAGE CORPORATION
f/k/a BENEFICIAL MORTGAGE CO.
OF KANSAS INC.,
Case No. 13-1059-RDR
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant
Beneficial Mortgage Corporation=s motion to dismiss.
proceeding pro se, has failed to timely respond to the defendant=s
Having carefully reviewed the defendant=s motion, the court
is now prepared to rule.
Plaintiff, proceeding pro se, filed a petition against the
defendant on December 21, 2012 in state court.
It was removed to
this court by the defendant on February 5, 2013 based upon diversity
of citizenship jurisdiction.
The defendant filed the instant motion
on March 5, 2013.
In his complaint, plaintiff asserts three causes of action:
(1) conversion; (2) negligence; and (3) breach of contract.
complaint is 18 pages in length.
of exhibits to the complaint.
Plaintiff also attached 19 pages
In his conversion claim, plaintiff
alleges that he was improperly evicted from his home and his home
was then looted of over $100,000 of items without any sign of forcible
He further contends that the defendant possessed the only
key to his home at that time.
He asserts that some of the items that
were taken included equipment and tools that deprive him of his
ability to earn income.
He seeks the return of these items from the
defendant and reasonable compensation for the denial of the use of
the tools needed to produce income.
In the negligence claim,
plaintiff alleges that the missing items were in defendant=s care,
custody and control, and that the defendant breached its duty that
these items would not be lost, damaged, or stolen.
of over $100,000 from the defendant.
He seeks damages
Finally, in the breach of
contract claim, he contends that the City of Wichita=s construction
contractor severely damaged his home in 2000.
He further asserts
that thereafter defendant asked him to enter into a new mortgage
concerning the Adamaged@ home and, during the refinancing process,
defendant agreed to Aassist and assure@ that repairs to his home would
He further alleges that on or about August 28,
2002, he entered into a new mortgage with the defendant and the
defendant has not kept Aits part of the agreement pertaining to
assuring that repairs to the home were actually done.@
asserts that, as a result, his home has no current market value and
he has been unable to re-finance his home with a different lender.
He contends that every mortgage payment he had made to the defendant
since August 28, 2002 Awas an act of fraud on the part of the
He seeks an order from the court enforcing the
defendant=s agreement to repair the house or to compensate him in the
amount of $97,286.00 along with various other types of damages.
In the instant motion, defendant contends plaintiff=s claims of
conversion and negligence fail to state a claim upon which relief
can be granted.
Defendant further asserts that the plaintiff=s
breach of contract claim is time-barred.
The defendant argues that plaintiff=s claims of conversion and
negligence must be dismissed because the exhibits attached to his
complaint show that another entity is responsible for the wrongful
conduct claimed by him.
The defendant points out that, in the
attached exhibits, plaintiff states that AProperty Management people@
or a AProperty Management Company@ was responsible for the conduct
asserted in the conversion and negligence claims.
claims that plaintiff has failed to state a claim for conversion
because he has failed to allege that either it or the AProperty
Management Company@ had any dominion over his property.
also contends that plaintiff=s negligence claim must be dismissed
because he has failed to allege facts that establish that it owed
a duty to him that his property would not be lost, damaged or stolen.
Finally, the defendant contends that plaintiff=s breach of
contract is time-barred.
The defendant argues plaintiff=s claim is
barred by the applicable statute of limitations in Kansas for
contracts regardless of whether the contract was written or oral.
The defendant points out that plaintiff filed his breach of contract
claim more than 10 years after the agreement was
entered into by
In ruling upon such a motion to dismiss, the court assumes as
true all well-pleaded factual allegations in the complaint and
determines whether they plausibly give rise to an entitlement of
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
must contain sufficient factual matter to state a claim which is
plausibleCand not merely conceivableCon its face. Id. AA 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. The court need not accept
as true those allegations which state only legal conclusions. Id.
Plaintiff must make allegations which show more than a sheer
possibility that defendants have acted unlawfullyCit is not enough
While ordinarily the statute of limitations is an affirmative
defense, the issue may be resolved on a Rule 12(b)(6) motion to
dismiss where the application of the limitations period is apparent
on the face of the complaint.
Farnsworth v. Hub of Syracuse, Inc.,
2012 WL 4061606 at * 1 (D.Kan. Sept. 14, 2012)(citing Jones v. Bock,
549 U.S. 199, 220-21 (2007)).
Because plaintiff is proceeding pro se, the court must construe
his pleadings liberally.
The court will not, however, act as his
advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009) (A[W]e must construe [a pro se litigant=s] arguments liberally;
this rule of liberal construction stops, however, at the point at
which we begin to serve as his advocate.@).
The defendant contends that dismissal of the conversion and
negligence claims is appropriate because the exhibits attached to
plaintiff=s complaint indicate that another entity is responsible for
the conduct asserted by plaintiff.
We must agree.
In the exhibits,
plaintiff states that a AProperty Management Company@ caused the
damages asserted in his complaint.
Given this direct contradiction
to the allegations contained in the complaint, the court is persuaded
that dismissal is appropriate here.
With this decision, the court
conversion and negligence claims.
The statute of limitations for breach of contract claims in
Kansas is either three years for oral contracts or five years for
See K.S.A. '' 60-511, 60-512 ARegardless of the
type of contract. . ., >the action for breach of contract accrues when
a contract is breached by the failure to do the thing agreed to,
irrespective of any knowledge on the part of the plaintiff or of any
actual injury it causes.=@ Dockhorn v. Kitchens By Kleweno, 2010 WL
1196425 at * 24-25 (D.Kan. Mar. 23, 2010)(quoting Pizel v. Zuspann,
247 Kan. 54, 795 P.2d 42, 54 (1990)).
In his breach of contract claim, plaintiff alleged that he
entered into an agreement with the defendant to Aassist and assure@
that certain repairs would be made to his house.
In the complaint,
plaintiff admits that the agreement was oral, but asserts it was Aput
in writing in the Defendant=s computer system.@
The court finds that
plaintiff=s claim is time-barred regardless of the type of contract
The contract was entered into in 2002 and plaintiff
acknowledges that he informed the defendant Aover the years since
2002" of its failure to perform under the contract.
Since over 10
years have passed since the parties entered into the agreement, the
court believes that plaintiff=s contract claim is barred by the
statute of limitations.
IT IS THEREFORE ORDERED that defendant=s motion to dismiss (Doc.
# 12) be hereby granted.
Plaintiff=s claim of conversion and
negligence are hereby dismissed for failure to state a claim upon
which relief can be granted.
Plaintiff=s breach of contract claim
is hereby dismissed as barred by the statute of limitations.
IT IS SO ORDERED.
Dated this 9th day of April, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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