Brock v. Dean Morris L L P et al

Filing 25

MEMORANDUM RULING re 20 MOTION to Dismiss For Failure to State a Claim filed by Dean Morris L L P. Signed by Judge S Maurice Hicks on 08/03/2016. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RICHARD ALAN BROCK

CIVIL ACTION NO. 15-2416

v.

JUDGE S. MAURICE HICKS, JR.

DEAN MORRIS, L.L.P. AND
ALLY BANK CORP.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is an unopposed Rule 12(b)(6) Motion to Dismiss (Record
Document 20) filed by Defendant Dean Morris, L.L.P. (“Dean Morris”). Dean Morris seeks
dismissal on the ground that Plaintiff Richard Brock (“Brock”) has failed to state a viable
claim for relief. See id. Alternatively, Dean Morris seeks dismissal pursuant to Rule 12(c),
a judgment on the pleadings. See id. For the reasons that follow, Dean Morris’ Rule
12(b)(6) motion is GRANTED.1
RELEVANT BACKGROUND
On July 27, 2006, Brock executed a promissory note in the amount of $56,000. This
promissory note was secured by a mortgage on the property commonly known as 3405
Seminole Drive, Shreveport, Louisiana (“the subject property”). According to Brock’s
amended complaint entitled “Wrongful Foreclosure and Theft, Brock arrived at the subject
property, which is his home, sometime between January and February 2015 to find that the
locks on the doors had been changed. He alleges that his mortgage payments were made
in full and co-defendant Ally Bank Corp. (“Ally Bank”) had the locks changed.
Subsequently, on August 31, 2015, Dean Morris was employed to conduct foreclosure

1

Because the instant motion was decided pursuant to Rule 12(b)(6), the Court did
not reach the Rule 12(c) analysis.

proceedings to enforce a Note and Mortgage against Brock due to the fact that he had
defaulted on the payments. In compliance with the Fair Debt Collections Practices Act,
Dean Morris mailed a notice to Brock on or about September 14, 2015. On September 17,
2015, Brock received the letter from Dean Morris stating that they were employed by Ally
Bank to file legal action against Brock’s mortgage loan totaling the amount of $52,155.72
plus several additional charges. On or about September 24, 2015, Dean Morris received
correspondence from Brock threatening legal action and Brock filed his complaint the same
day.
On February 19, 2016, Dean Morris filed an unopposed Rule 12(b)(6) motion to
dismiss for failure to state a claim (Record Document 20). It is Dean Morris’ position that
under no set of facts could Brock recover damages from the facts alleged in the complaint.
LEGAL STANDARD
Dean Morris has moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” which need only be
enough to alert the defendant of the claims being brought against him. See Conley v.
Gibson, 355 U.S. 47 (1957). However, more recent precedent has determined that in order
for a plaintiff to survive a motion to dismiss, the plaintiff must plead enough facts “to state
a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). The Iqbal Court
determined that a claim is plausible on its face when the facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal 550
U.S. at 1949 (2009). Additionally, the court need only to accept the well-plead facts as true
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and may dismiss any legal conclusions. See id. at 1949-1950.
To be legally sufficient, a claim must go beyond proving merely a “sheer possibility”
that plaintiff’s claim is valid. See id. However, it is not necessary for the complaint to
contain meticulous factual details for each claim, though the claims must go beyond “labels
and conclusions, and a formulaic recitation of the elements.” See Twombly 550 U.S. at
555. If the factual allegations do not meet this heightened plausibility pleading standard
or if the allegations demonstrate that the plaintiff is not entitled to relief, then the case is
subject to dismissal. See id.; see also Jones v. Bock, 549 U.S. 199, 215 (2007).
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a district
court must limit itself to the contents of the pleadings, including attachments thereto,” which
includes documents attached to the motion to dismiss. See Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit has adopted the position
of other circuits that the documents that are attached to the motion to dismiss are to be
considered as part of the pleading if the plaintiff referred to them in the complaint and are
paramount to his claim. See id. at 498-99 (quoting Venture Assocs. Corp. v. Zenith Data
Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
ANALYSIS
The function of a Rule 12(b)(6) motion to dismiss for the failure to state a claim is
to “allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal
relief even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635,
638 (6th Cir. 1993). Therefore, Dean Morris has the burden of proving that under no set
of facts could Brock recover based on the allegations stated in the pleadings.
Dean Morris argues that Brock did not allege any misconduct on the part of Dean
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Morris in either the original complaint (Record Document 1) or the amended complaint
(Record Document 2). The original complaint is titled a “Motion for Temporary Restraining
Order for Foreclosure.” Record Document 1. In this document, Dean Morris is only
accused of sending a letter to Brock regarding the foreclosure of his home and not verifying
Brock’s mortgage by any information such as an account number. See id. The only other
misconduct alleged in the original complaint by Brock on the part of Dean Morris is that the
receptionist failed to let him speak to an attorney when calling to inquire about the letter
he received. According to the Twombly Court, “[a]sking for plausible grounds does not
impose a probability requirement at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of” misconduct on the
part of the defendant.

Twombly, 550 U.S. at 545. Here, Brock did not plead any

allegations that give rise to the belief that discovery would in fact reveal evidence of legally
punishable misconduct by Dean Morris. Therefore, the claims being brought by Brock
against Dean Morris should be dismissed.
Additionally, in the amended complaint entitled “Wrongful Foreclosure and Theft”
filed on September 25, 2015, Brock alleges the cause of action of “wrongful foreclosure
and/or eviction.” Record Document 2. In this document, there are only two mentions of
Dean Morris. First, Brock names Dean Morris as a defendant in the lawsuit in paragraph
3. Second, Brock states in paragraph 9 that he received a letter from Dean Morris
informing him that Dean Morris was engaged by co-defendant Ally Bank to commence the
legal proceedings to enforce Mr. Brock’s mortgage loan. Once again, neither of these
references to Dean Morris constitute a legal cause of action, and therefore, the allegations
are not plausibly plead in accordance with Twombly and Iqbal. In addition, notably absent
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from both the original complaint and the amended complaint are any alleged damages
caused by Dean Morris as well as a lack of any prayer for relief. This absence further
displays that Dean Morris is not a proper defendant in this action.
Based on the failure to state a claim under Rule 12(b)(6), and the absence of any
opposition, Dean Morris’ Motion to Dismiss is GRANTED. Brock has failed to state any
legal cause of action to which he would be entitled to relief against Dean Morris.
Therefore, Brock’s claim against Dean Morris is DISMISSED WITH PREJUDICE.
CONCLUSION
The Court finds that Mr. Brock has not met the required pleading standard under
Rule 12(b)(6). Accordingly, Dean Morris’s unopposed Rule 12(b)(6) Motion to Dismiss
(Document 20) is GRANTED. Brock’s claim(s) against Dean Morris are DISMISSED WITH
PREJUDICE.
A judgment consistent with the instant Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 3rd day of August 2016.

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