Trahan v. Deutsche Investment Management Americas, Inc. et al
Filing
60
ORDER AND REASONS granting 52 Motion to Dismiss for Failure to State a Claim Unless Plaintiff files within 14 days of the filing of this Order and amended complaint as set forth in document. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NORMAL PAUL TRAHAN
CIVIL ACTION
VERSUS
NO. 15-3039
DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS, INC., ET AL.
SECTION “B”(2)
ORDER AND REASONS*
I.
NATURE OF MOTION AND RELIEF SOUGHT
Before the Court is Defendant’s, GMFS, LLC (“GMFS”), “Motion
to Dismiss Pursuant to Federal Rule 12(b)(6)” (Rec. Doc. 52), as
well as Plaintiff’s, Norman Paul Trahan, opposition thereto. (Rec.
Doc. 55). Defendant GMFS seeks dismissal of any claims against it
because Plaintiff’s pleadings do not provide a cause of action
upon which relief can be granted.
For the reasons outlined below, IT IS ORDERED that Defendant’s
Motion
to
Dismiss
is
GRANTED unless
Plaintiff
files
within
fourteen (14) days of the filing of this Order an amended complaint
with detailed facts to support legal conclusions against Defendant
GMFS.
II.
FACTS AND PROCEDURAL HISTORY
In 2003, Plaintiff inherited a home and other debts from a
Will. (Rec. Doc. 1-2 at 6). Because of the debts, Plaintiff decided
to acquire a mortgage on the home, entering into a loan with
*
We are grateful for work on this matter by Philip Giorlando, an extern with
our Chambers from the LSU Paul M. Herbert Law Center.
Countrywide Home Loans, Inc. on November 13, 2003. (Rec. Doc. 1-2
at 7). Following a work injury in 2004, Plaintiff was unable to
pay the loan, resulting in foreclosure on the property on or about
January 31, 2007. (Rec. Doc. 1-2 at 7). In his original complaint,
filed in the 32nd District Court for Terrebonne Parish on June 19,
2015, Plaintiff claims that foreclosure was fraudulently obtained
because of the multiple insurance options available to prevent
this foreclosure. (Rec. Doc. 1-2 at 7).
The original defendants named in the suit were Countrywide
Home Loans, Inc., Deutsche Investment Management Americas, Inc.,
and XXX Insurance Company and/or Companies. (Rec. Doc. 1-2 at 3).
Those defendants removed the case to this Court on July 28, 2015,
because there is complete diversity of citizenship as Plaintiff is
a citizen of Louisiana, Defendant Countrywide is a citizen of New
York and California, and Defendant Deutsche Investment is a citizen
of New York and Delaware, and the amount in controversy exceeds
$75,000 so as to justify jurisdiction under 28 U.S.C. § 1332. (Rec.
Doc. 1 at 4-5). They also noted that removal was warranted because
there are claims under the federal Truth in Lending Act, so as to
provide federal subject matter
jurisdiction under 28 U.S.C. §
1331.(Rec. Doc. 1 at 7).1
1
It is important to note that jurisdiction under 28 U.S.C. § 1332 was destroyed
by the latter addition of GMFS, a citizen of Louisiana. However, jurisdiction
is still valid under 28 U.S.C. § 1331.
2
On August 12, 2015, Plaintiff’s Amended Complaint naming
Defendant GMFS was filed because discovery allegedly revealed that
such an addition was necessary for relief. (Rec. Doc. 12 at 2). In
the
Amended
Complaint,
Plaintiff
alleges
that
GMFS
actively
participated in unlawful financing and foreclosure practices on
the mortgage. (Rec. Doc. 12 at 3). Plaintiff does not provide
detailed facts on how GMFS was involved in the loan, apparently
granted
by
Countrywide,
or
the
mortgage
foreclosed
on
by
Countrywide (Rec. Doc. 12 at 3).
On April 14, 2016, Plaintiff filed his “Motion for Leave to
Amend Complaint to Clarify,” seeking to amend both the original
Complaint
and
Particularly,
the
Amended
Plaintiff
Complaint.
sought
to
(Rec.
include
Doc.
more
35
legal
at
1).
details
regarding the Defendants’ illegal activities. (Rec. Doc. 35-1 at
1). This motion was denied by the Magistrate Judge on May 4, 2016,
after noting that “Plaintiff ha[d] already requested and been
granted leave to file a previous amendment.” (Rec. Doc. 49 at
2)(citing
Rec.
Docs.
8,11-12).
The
Magistrate
Judge
further
pointed out that the previously allowed “permitted amendment was
the opportunity ‘to clarify’ what plaintiff duplicatively [sought]
again with [the subsequent] motion.” (Rec. Doc. 49 at 2). In
concluding,
the
Magistrate
Judge
found
“dilatory
motive,
bad
faith, undue prejudice and futility all exhibited in th[e] motion.”
(Rec. Doc. 49 at 2).
3
Consequently, GMFS provides the only clarification of its
position in the record to date. In its Motion, GMFS alleges that
it was not involved with the mortgage in any way until it was
endorsed to it in March of 2005. (Rec. Doc. 52-1 at 2). Following
this endorsement, GMFS sold all rights in the mortgage to Goldman
Sachs on May 29, 2005. (Rec. Doc. 52-1 at 2). Therefore, GMFS only
interacted with the mortgage for approximately two months. Again,
Plaintiff did not allege as much.
III. MOTION TO DISMISS STANDARD
A motion to dismiss allows a party to move for dismissal of
a complaint for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). Such a motion is rarely granted
because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ.
Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum &
Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050
(5th Cir. 1982)). When reviewing a motion to dismiss, courts must
accept all well-pleaded facts as true and view them in the light
most favorable to the non-moving party. Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
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.” Gonzales v. Kay, 577 F.3d
4
600, 603 (5th Cir. 2009)(quoting Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009))(internal quotation marks omitted). The Supreme
Court in Iqbal explained that Twombly promulgated a “two-pronged
approach” to determine whether a complaint states a plausible claim
for relief. Iqbal, 129 S. Ct. at 1950. First, courts must identify
those pleadings that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. Legal conclusions
“must
be
supported
by
factual
allegations.”
Id.
“Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 1949.
Upon identifying the well-pleaded factual allegations, courts
“assume their veracity and then determine whether they plausibly
give rise to an entitlement of relief.” Id. at 1950. A claim has
facial plausibility when the movant pleads factual content that
allows
the
court
to
draw
the
reasonable
inference
that
the
nonmovant is liable for the misconduct alleged. Id. at 1949. This
is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
IV.
DISCUSSION
The issue is whether Plaintiff has provided enough facts to
support a cause of action against GMFS. The only portion of the
Complaint that includes Defendant GMFS is paragraph six of the
Amended Complaint, which states that “GMFS, LLC . . . were active
participants in the mortgage, seizure, and unlawful foreclosure of
5
Trahan’s home and property as alleged in his original state
petition.” (Rec. Doc. 12 at 3). There is no factual support for
this claim against GMFS, nor explanation as to GMFS’s alleged
involvement. (Rec. Doc. 12 at 3). It is also important to recognize
that the facts in the pleadings do not show that GMFS issued the
mortgage, engaged in any refinancing, or participated in the
foreclosure.
of
GMFS
This “naked assertion” regarding the participation
requires
more
factual
considered by this Court.
development
Iqbal,
before
it
can
be
566 U.S. at 678. Plaintiff
contends that “ongoing discovery” has revealed GMFS as a defendant
necessary for the success of the original Complaint, but has
provided no facts to that effect. (Rec. Doc. 12 at 2).
Within Plaintiff’s opposition, he cites to Title 12 of the
Code of Federal Regulations as the primary law that GMFS breached.
(Rec. Doc. 55 at 2). The pertinent portion of this law is §
226.34(a)(4), which states that a creditor cannot extend credit to
someone “without regard to the consumer’s repayment ability as of
consummation.” 12 C.F.R. § 226.34(a)(4). Even if this law was
included in the Complaint or Amended Complaint, which it was not,
Plaintiff is still required to provide factual support for this
claim. See Iqbal, 566 U.S. at 669. In his Opposition, Plaintiff
asserts that GMFS knew that his home could not be re-financed, but
allowed it to occur anyway. (Rec. Doc. 55 at 2). There was no
factual support for this assertion. Moreover, there are no facts
6
that even show GMFS’s slightest involvement in this matter. Thus,
the required standards established in Iqbal are not present. 566
U.S. at 678.
While
the
Court
recognizes
a
liberal
amendment
policy,
amendment is not automatic and is within the sound discretion of
the
trial
court.
Foman
v.
Davis,
371
U.S.
178,
182
(1962).
Nonetheless, the court should grant leave “[i]n the absence of any
apparent or declared reason[.]” Id.2 As previously noted, Plaintiff
has already filed a motion attempting to clarify his claims a
second time (Rec. Doc. 35), which was denied by the Magistrate
Judge (See Rec. Doc. 49). Clearly, the proposed amendment sought
to add further legal conclusions without notice of minimal factual
support.
In addition to the Magistrate Judge’s finding of “dilatory
motive, bad faith, undue prejudice, and futility” (Rec. Doc. 49 at
2), this Court also recognizes the “repeated failure to cure
deficiencies” in the Complaint “by amendments previously allowed.”
Foman, 371 U.S. at 182. Plaintiff already had an opportunity to
clarify his claims with any necessary additions, including parties
and facts, but failed to sufficiently supplement the original
Complaint. (Rec. Doc. 12). While in agreement with the Magistrate
2
These reasons include, but are not limited to, “undue delay, bad faith or
dilatory motive on the part of the [party seeking to amend], repeated failure
to cure deficiencies by amendment previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment,
etc.” Id.
7
Judge, the undersigned will nevertheless give this pro se litigant
notice
that
failure
to
provide
factual
support
for
legal
conclusions in a timely filed motion to file an appropriate
amending complaint will lead to dismissal of the action without
further
notice.
Plaintiff
has
fourteen
(14)
days
from
entry
of this Order to file such motion and amendment.
Finally, though this Court recognizes the leniency frequently
afforded to pro se plaintiffs, Moawad v. Childs, 673 F.2d 850,
851-52 (5th Cir. 1982), such leniency may not be warranted with
regard to any litigant where, as here, there is evidence of
substantial experience as a pro se litigant in numerous legal cases
in this court alone. See, e.g., Complaint, Trahan v. Janssen
Pharm., Inc. et al., No. CV-15-2717 (E.D. La. filed July 17, 2015);
Trahan v. F.B.I., No. CV-14-1068 (E.D. La. July 14, 2014); Trahan
v. Abdon Callais Offshore, LLC, No. CV-14-210 (E.D. La. Apr. 21,
2014); Trahan v. Encore Food Servs., LLC et al., No. CV-13-6036
(E.D. La. Nov. 8, 2013); Trahan v. Terrebone Par. Dep’t of Corr.
and Rehab., et al., No. CV-08-3773 (E.D. La. Mar. 12, 2009); Trahan
v. Laborde Marine Lifts, Inc., No. CV-05-6381 (E.D. La. May 30,
2008). Any amendment will be reviewed for compliance with above
cautionary directives and subject to dismissal if noncompliant.
V.
CONCLUSION
For
the
reasons
enumerated
above,
IT
IS
ORDERED
that
Defendant’s Motion to Dismiss is GRANTED; unless Plaintiff files
within fourteen (14) days of the filing of this Order an amended
8
complaint with detailed facts to support legal conclusions against
Defendant GMFS.
New Orleans, Louisiana, this 20th day of July, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
9
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?