Johnson v. Bank of America NA et al

Filing 18

ORDER and REASONS granting 14 Motion to Dismiss Party Based on Res Judicata as stated within document. Signed by Judge Kurt D. Engelhardt on 2/1/2012. (cab) Modified on 2/1/2012 to edit document type (cab).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DESIREE A. JOHNSON

CIVIL ACTION

VERSUS

NO. 11-1641

BANK OF AMERICA, N.A.,
BAC HOME LOAN SERVING, LP,
AND LIBERTY BANK AND TRUST
COMPANY

SECTION “N” (4)

ORDER AND REASONS
Before the Court is the “ Motion to Dismiss based on Res Judicata” (Rec. Doc. 14),
filed by Defendants Bank of America, N.A., and BAC Home Loans Servicing, L.P
(“Defendants”). This motion is opposed by Plaintiff, Desiree A. Johnson (“Plaintiff”). (See Rec.
Doc. 17). After considering the memoranda filed by the parties, the Court rules as set forth
herein.
I.

BACKGROUND
This litigation arises out of Bank of America’s foreclosure of Plaintiff’s property located

at 3300 Elysian Fields Avenue in New Orleans, Louisiana. On July 9, 2010, Plaintiff, through
counsel, filed an action in this Court styled Desiree Johnson v. Bank of America, N.A., BAC
Home Loan Serving, LP, Graham & Arceneaux, PLC, Louis Graham Arceneaux, ABC Insurance

Company, and XYZ Insurance Company, No. 2:10-cv-01943 (the “Prior Action”). Defendants
moved to dismiss the claims asserted against them in the Prior Action pursuant to Rules 12(b)(1),
12(b)(6), and 56. (Prior Action, Rec. Doc. 21). The Court established an expedited briefing
schedule. (Prior Action, Rec. Doc. 25). However, Plaintiff failed to file any timely opposition to
Defendant’s Motion to Dismiss. (See Prior Action, Rec. Doc. 29). Plaintiff filed an untimely
opposition two days prior to the hearing date on Defendant’s Motion to Dismiss, and the
opposition was stricken from the record. (Prior Action, Rec. Doc. 29). Plaintiff was instructed
to request leave of Court to file the opposition and provide good cause for its untimeliness, but
failed to do so. (See Prior Action, Rec. Doc. 29). The Court granted Defendant’s Motion to
Dismiss by Order dated January 31, 2011. (Prior Action, Rec. Doc. 30). In that Order, the Court
stated that any Motion for Reconsideration of the Order should “be filed within ten days of the
date this Order is entered by the Clerk of Court.” (Prior Action, Rec. Doc. 30). When no motion
for reconsideration was filed, the Court entered Judgment dismissing Plaintiff’s complaint with
prejudice on February 22, 2011. (Prior Action, Rec. Doc. 31).
On or about July 12, 2011, Plaintiff, now proceeding pro se, filed this lawsuit, asserting
claims related to her note and mortgage and the foreclosure, seizure and sale of her house. (Rec.
Doc. 1).
II.

ARGUMENTS OF THE PARTIES
Defendants assert that Plaintiff’s claims in the current suit are barred by res judicata based

on the Judgment entered in the Prior Action. Plaintiff’s opposition does not make any
substantive response to Defendants’ argument regarding res judicata. Rather, Plaintiff,
proceeding pro se, states her grounds for her underlying claim, arguing that Defendants did not
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have standing to foreclose on her property.
III.

DISCUSSION
A.

Legal Standard

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). To satisfy this requirement, the statement must provide the defendant with “fair notice
of what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema,
534 U.S. 506, 511, 122 S. Ct. 992, 998 (2002) (internal citations omitted); see also Christopher
v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 2187 (2002) (the elements of the plaintiff's
claim(s) “must be addressed by allegations in the complaint sufficient to give fair notice to a
defendant”).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, --- U.S. ---, 127 S. Ct. 1955, 1964-65, 167 L.
Ed.2d 929 (2007) (internal citations and quotations omitted) (emphasis added); see also
Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual
allegation”). Thus, “the plaintiff must plead ‘enough facts to state a claim to relief that is
plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)

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(quoting Twombly, 127 S. Ct. at 1974)). 1 In other words, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all of the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 127 S. Ct. at 1965.2
The degree of required specificity depends on context, i.e. the type of claim at issue. Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
If sufficient notice of the basis of the plaintiff’s claim is provided, “dismissal will not be
affirmed if the allegations support relief on any possible theory” of recovery. Indest v. Freeman

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Relative to the notice pleading standard, the Twombly Court further explained:
The dissent greatly oversimplifies matters by suggesting that the
Federal Rules somehow dispensed with the pleading of facts
altogether. See post, at 1979 (opinion of STEVENS, J.) (pleading
standard of Federal Rules “does not require, or even invite, the
pleading of facts”). While, for most types of cases, the Federal
Rules eliminated the cumbersome requirement that a claimant “set
out in detail the facts upon which he bases his claim,” Conley v.
Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)
(emphasis added), Rule 8(a)(2) still requires a “showing,” rather
than a blanket assertion, of entitlement to relief. Without some
factual allegation in the complaint, it is hard to see how a claimant
could satisfy the requirement of providing not only “fair notice” of
the nature of the claim, but also “grounds” on which the claim
rests. See 5 Wright & Miller § 1202, at 94, 95 (Rule 8(a)
“contemplate[s] the statement of circumstances, occurrences, and
events in support of the claim presented” and does not authorize a
pleader's “bare averment that he wants relief and is entitled to it”).

Twombly, 127 S. Ct. at 1964-65 n 3.
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The Third Circuit Court of Appeals recently described Twombly as “seek[ing] to
find a middle ground between ‘heightened fact pleading,’ which is expressly rejected . . . and
allowing complaints that are not more than ‘labels and conclusions’ or a ‘formulaic recitation of
the elements of a cause of action,’ which the Court stated ‘will not do.’” Robbins, 519 F.3d at
1247 (quoting Twombly, 127 S. Ct. at 1965, 1974).
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Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) (internal citations omitted).3 In making this
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In Twombly, the Supreme Court also took the opportunity to clarify the frequently
quoted principle that a Rule 12(b)(6) motion to dismiss should be granted “only if it is clear that
no relief could be granted under any set of facts that could be proved consistent with the
allegations” in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S. Ct. at 998 (internal citations
omitted). Specifically, the Supreme Court stated:
[In Conley v. Gibson, 355 U.S. 41,45-46, 78 S. Ct. 99, 2 L. Ed.2d
80 (1957),] Justice Black's opinion for the Court [] spoke not only
of the need for fair notice of the grounds for entitlement to relief
but of the accepted rule that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” [] On such a focused and literal
reading of Conley's “no set of facts,” a wholly conclusory
statement of claim would survive a motion to dismiss whenever the
pleadings left open the possibility that a plaintiff might later
establish some set of [undisclosed] facts” to support recovery.
***
Seeing this, a good many judges and commentators have balked at
taking the literal terms of the Conley passage as a pleading
standard. See, e.g., Car Carriers [v. Ford Motor Co., 745 F.2d
1101, 1106 (7th Cir. 1984)] (“Conley has never been interpreted
literally”) and, “[i]n practice, a complaint ... must contain either
direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory”
(internal quotation marks omitted; emphasis and omission in
original); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,
1155 (9th1989) (tension between Conley's “no set of facts”
language and its acknowledgment that a plaintiff must provide the
“grounds” on which his claim rests); O'Brien v. DiGrazia, 544
F.2d 543, 546, n. 3 (1st Cir. 1976) (“[W]hen a plaintiff . . . supplies
facts to support his claim, we do not think that Conley imposes a
duty on the courts to conjure up unpleaded facts that might turn a
frivolous claim of unconstitutional . . . action into a substantial
one”); McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39,
42-43 (6th Cir. 1988) (quoting O'Brien's analysis); Hazard, From
Whom No Secrets Are Hid, 76 Tex. L. Rev. 1665, 1685 (1998)
(describing Conley as having “turned Rule 8 on its head”); Marcus,
The Revival of Fact Pleading Under the Federal Rules of Civil
Procedure, 86 Colum. L.Rev.433, 463-465 (1986) (noting tension
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determination, the Court “must accept all well-pleaded facts as true, and . . . view them in the
light most favorable to the plaintiff.” Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442
(5th Cir.), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279 (1986). Moreover, “[a]ll questions of fact
and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor.”
Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). Finally, to the extent that the complaint’s
allegations are simply vague or ambiguous, a motion for more definite statement, pursuant to

between Conley and subsequent understandings of Rule 8).
We could go on, but there is no need to pile up further citations to
show that Conley's “no set of facts” language has been questioned,
criticized, and explained away long enough. To be fair to the
Conley Court, the passage should be understood in light of the
opinion's preceding summary of the complaint's concrete
allegations, which the Court quite reasonably understood as amply
stating a claim for relief. But the passage so often quoted fails to
mention this understanding on the part of the Court, and after
puzzling the profession for 50 years, this famous observation has
earned its retirement. The phrase is best forgotten as an incomplete,
negative gloss on an accepted pleading standard: once a claim has
been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint. See Sanjuan
[v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247,
251 (7th Cir. 1994), cert. denied 516 U.S.1159, 116 S. Ct. 1044
(1996)] (once a claim for relief has been stated, a plaintiff
“receives the benefit of imagination, so long as the hypotheses are
consistent with the complaint”); accord, Swierkiewicz, 534 U.S. at
514, 122 S. Ct. 992; National Organization for Women, Inc. v.
Scheidler, 510 U.S. 249, 256, 114 S. Ct. 798, 127 L. Ed.2d 99
(1994); H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S.
229, 249-250, 109 S. Ct. 2893, 106 L. Ed.2d 195 (1989); Hishon
v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed.2d
59 (1984). Conley, then, described the breadth of opportunity to
prove what an adequate complaint claims, not the minimum
standard of adequate pleading to govern a complaint's survival.[]
Twombly, 127 S. Ct. at 1968-69 & n. 8.
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Rule 12(e), is appropriate. Swierkiewicz, 534 U.S. at 514, 122 S. Ct. 998.

B.

Analysis
Res judicata encompasses two distinct but related doctrines: claim preclusion and issue

preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008); Test Masters Educational Services,
Inc. V. Singh, 428 F.3d 559, 571 (5th Cir. 2005). Claim preclusion, true res judicata, “bars the
litigation of claims that either have been litigated or should have been raised in an earlier suit.”
Test Masters, 428 F.3d at 571 (citing Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th
cir. 2004) (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999))). In order to
demonstrate that a plaintiff’s claims are barred by res judicata, a defendant must show that “(1)
the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court
of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits;
and (4) the same claim or cause of action was involved in both actions.” Id. (citation omitted).
Here, the first two prongs of the test are clearly met. The parties involved in both cases,
as are pertinent to this motion, are identical; the plaintiff in both actions is Desiree Johnson, and
Bank of America, N.A. and BAC Home Loan Serving, LP are Defendants in both actions.
Further, this Court had federal question jurisdiction over the prior action under Section 1331 of
Title 28 of the United States Code, as alleged in Plaintiff’s complaint in the prior action.
Plaintiff asserted several claims based on federal law, as well as related state law claims, which
this Court has jurisdiction over pursuant to Section 1367 of Title 28 of the United States Code.
The prior action was dismissed after the Court granted Defendant’s unopposed Motion
for Summary Judgment. (Prior Action, Rec. Doc. 30). The Court stated, in its Order granting
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Defendant’s Motion for Summary Judgment, that any motion for reconsideration of the order
need be filed within ten days of the date of the order. (Id.) No motion for reconsideration was
filed within the allotted time, and the Court subsequently issued a Judgment dismissing
Plaintiff’s complaint with prejudice. (Prior Action, Rec. Doc. 31). In Brooks v. Raymond Dugat
Co. L C, the United States Court of Appeals for the Fifth Circuit stated that “[a] dismissal with
prejudice is a final judgment on the merits.” 336 F.3d 360, 362 (citing Schwarz v. Folloder, 767
F.2d 125, 129-130 (5th Cir. 1985)). The Fifth Circuit earlier explained that “[d]ismissal of an
action with prejudice is a complete adjudication of the issues presented by the pleadings and is a
bar to a further action between the parties. An adjudication in favor of the defendant, by court or
jury, can rise no higher than this.” Schwarz, 767 F.2d at 129. Thus, the Court’s Judgment
dismissing the case with prejudice was a final judgment on the merits, satisfying the third prong
of the test.
In order to determine whether the case involves the same claim or cause of action as the
prior case, the Fifth Circuit uses the transactional test, under which “a prior judgment’s
preclusive effect extends to all rights of the plaintiff with respect to all or any part of the
transaction, or series of connected transactions, out of which the original action arose.” Cuauhtli
v. Chase Home Finance LLC, 308 F.App’x. 772, 774 (5th Cir. 2009). Applying this test in
Cuauhtli v. Chase home Finance LLC, 308 F.App’x. at 774, the Fifth Circuit found that a suit
brought by a foreclosed homeowner and a subsequent suit brought by her husband asserting
different legal theories of liability for the allegedly improper foreclosure of their home arose out
of the same transaction such that the husband’s suit was barred by res judicata when the
defendant was granted summary judgment in the first suit.
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Here, Plaintiff’s current case and the prior action assert claims related to the allegedly
improper foreclosure of her home. The prior action asserted claims based on several federal laws
enacted in the wake of the foreclosure crisis, (Prior Action, Rec. Doc. 1), while the current suit
raises contract law claims, as well as claims based on federal and state consumer protection laws.
(Rec. Doc. 3). While the claims brought in these actions are slightly different, both suits arise
out of the same transaction, the mortgage and foreclosure of Plaintiff’s home. As such, the Fifth
Circuit’s transactional test is met and the same claim or cause of action is involved in both the
prior action and the current action. Plaintiff’s claims against Defendants must therefore be
dismissed as barred by res judicata.
IV.

CONCLUSION
Considering the foregoing, IT IS ORDERED that the “Defendant’s Motion to Dismiss

Based on Res Judicata” (Rec. Doc. 14) is GRANTED.
New Orleans, Louisiana, this 1st day of February 2012.

_______________________________________
KURT D. ENGELHARDT
United States District Judge

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