Ikeri v. Sallie Mae, Inc. et al
ORDER denying as moot 40 Motion to Strike Pleading ; denying as moot 40 Motion to Dismiss; granting 43 Motion to Dismiss the Amended Complaint; denying 49 Motion to Alter/Amend/Supplement Pleadings; granting 68 Motion for Extension of Time to File Response/Reply (Written Opinion). Signed by Senior Judge David S. Doty on 8/18/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Angela N. Ikeri and Augustine
Sallie Mae, Inc. and International
University of Nursing, LLC,
P. Chinedu Nwaneri, Esq. and Nwaneri Law Firm PLLC, 4655
Nicols Road, Suite 106, Eagan, MN 55122, counsel for
Robert M. Smith, Esq. and Robert M. Smith Law Office, 100
South Fifth Street, Suite 2100, Minneapolis, MN 55402 and
J. Christopher Jensen, Esq. and Cowan, Liebowitz & Latman
PC, 1133 Avenue of the Americas, New York, NY 10036,
counsel for defendants.
This matter is before the court upon the motion to dismiss by
defendant International University of Nursing LLC (IUON) and the
motion to amend the complaint by plaintiffs Angela N. Ikeri and
Augustine C. Onuoha.
Based on a review of the file, record and
proceedings herein, and for the following reasons, the court grants
the motion to dismiss and denies the motion to amend.
This contract dispute arises out of Onuoha’s attendance of
IUON, a nursing school located in St. Kitts and Nevis.
In September 2006, Onuoha was accepted to IUON’s two-year
Id. ¶ 9.
At the time of his admission, IUON
informed Onuoha that (1) he would be offered a student loan through
non-party Sallie Mae1 and (2) upon successful completion of one
year of study at IUON, he would be able to transfer to one of
IUON’s partner schools in the United States.
Id. ¶¶ 12-13.
Ikeri co-signed Onuoha’s loan through Sallie Mae.
Id. ¶ 20.
Onuoha enrolled at IUON in September 2006 and Sallie Mae disbursed
$31,486.00 to Onuoha for tuition.
Id. ¶¶ 27, 30.
In April 2007,
Sallie Mae informed Onuoha and IUON that it would not grant IUON
students any additional loans.
Id. ¶ 31.
Id. ¶ 37.
Thereafter, IUON requested that
Onuoha take an academic leave of absence.
Id. ¶ 38.
a leave of absence from IUON and, in August 2008, IUON informed
Onuoha that he had been admitted to the nursing program at Essex
County Community College (ECCC) in New Jersey.
Id. ¶ 51.
did not enroll in ECCC and instead completed his nursing school at
Clarence Fitzroy Bryant College in St. Kitts and Nevis.
Sallie Mae was initially named as a defendant in this
On April 23, 2014, plaintiffs filed a stipulation
dismissing Sallie Mae as a defendant. See ECF No. 48. Prior to
such stipulation, Sallie Mae moved to strike and dismiss the
amended complaint. Because Sallie Mae is no longer a defendant in
this matter, the court denies that pending motion as moot.
On July 19, 2013, Ikeri filed a complaint against IUON and
Sallie Mae, alleging that IUON and Sallie Mae falsified Onuoha’s
student loan application by including a fake Social Security
number. On October 17, 2013, Ikeri moved to amend the complaint to
add Onuoha as a plaintiff and assert claims for breach of contract,
misrepresentation, fraud and emotional distress.
On February 5,
2014, magistrate judge Janie S. Mayeron granted in part the motion
to amend, allowing the addition of Onuoha as a plaintiff and the
addition of the breach of contract claim.
On February 13, 2014, plaintiffs filed a one-count amended
complaint, alleging only a breach of contract claim on behalf of
Specifically, the claim alleges that IUON failed to
transfer Onuoha to a school in the United States after his first
year at IUON.
IUON moved to dismiss, and the court scheduled a
hearing on the motion.
Thereafter, two days before the hearing on
the motion to dismiss, plaintiffs again moved to amend their
complaint, seeking to add a breach of contract claim on behalf of
Ikeri and claims of fraud on behalf of both plaintiffs.
Motion to Amend
The court first addresses plaintiffs’ motion to amend the
The court shall provide leave to amend “when
justice so requires.”
Fed. R. Civ. P. 15(a)(2).
Leave to amend,
however, is not an absolute right and “undue delay, bad faith, or
amendments previously allowed, undue prejudice to the non-moving
party, or futility of the amendment may be grounds to deny a motion
Doe v. Cassel, 403 F.3d 986, 991 (8th Cir. 2005)
(citation and internal quotation marks omitted). “[D]elay alone is
insufficient to deny a motion for leave to amend.”
Dillard Dep’t Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000)
“Rather, the party opposing the motion must
show it will be unfairly prejudiced.”
Id. (citation omitted).
Here, plaintiffs have exhibited bad faith and have been
dilatory in seeking leave to amend their complaint.
after IUON moved to dismiss the complaint, plaintiffs did not
submit a memorandum in opposition to the motion, as required by
Local Rule 7.1(c)(2),2 or move to amend to cure any deficiencies.
Rather, plaintiffs waited for nearly two months after IUON moved to
dismiss before filing the instant motion to amend two days before
the hearing on the motion to dismiss.
See ECF Nos. 49, 61.
delay is particularly problematic because the facts underlying the
proposed claims have long been known to plaintiffs.
On April 25, 2014, the morning of the hearing, plaintiffs
submitted a memorandum in opposition to the motion to dismiss.
Thereafter, on June 9, 2013, plaintiffs moved the court to accept
its late-filed response. See ECF No. 68. Although it would be
fully within the court’s discretion under the Local Rules to not
consider the memorandum, the court grants the motion to accept the
claims are nearly identical to those that the magistrate judge
previously considered and rejected, citing a lack of particularity.
See ECF No. 36, at 23, 29.
The court will not countenance such
Moreover, IUON has demonstrated prejudice, as its
counsel had fully briefed and prepared for the pending hearing
the motion to dismiss the before plaintiffs brought
their dilatory motion.
As a result, given such delay and bad faith
by plaintiffs and the prejudice to IUON, leave to amend is not
Motion to Dismiss
As a result, the court considers IUON’s motion to dismiss the
one count in plaintiffs’ amended complaint.
Standard of Review
To survive a motion to dismiss for failure to state a claim,
“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(citations and internal quotation marks omitted).
“A claim has
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
the speculative level.
See Twombly, 550 U.S. at 555.
and conclusions or a formulaic recitation of the elements of a
cause of action” are not sufficient to state a claim.
U.S. at 678 (citation and internal quotation marks omitted).
The court does not consider matters outside the pleadings
under Rule 12(b)(6).
See Fed. R. Civ. P. 12(d).
however, may consider matters of public record and some materials
that do not contradict the complaint, as well as materials that are
“necessarily embraced by the pleadings.” See Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citations and
internal quotation marks omitted).
In this case, the court does
not consider the plaintiffs’ declarations, as they are neither
matters of public record nor embraced by the pleadings.
Breach of Contract
IUON argues that the breach of contract claim is time-barred
by Minnesota’s six-year statute of limitations.
See Minn. Stat.
purported breach of contract - IUON failing to transfer Onuoha
after his first year of study - occurred in July 2007, more than
six years before the filing of the amended complaint.
respond that (1) the relevant date for purposes of statute of
limitations is July 2008 rather than July 2007 and (2) the breach
of contract claim in the amended complaint relates back to the
Both arguments are unavailing.
Plaintiffs argue that IUON “willingly and voluntarily carried
on its responsibility to transfer Onuoha to one of its purported
partner schools throughout the ... 2007/2008 academic year, which
ended in July 2008.”
ECF No. 60, at 6.
As a result, plaintiffs
argue that July 2008 is the relevant date for considering whether
the claims are timely.
The breach of contract claim, however, is
expressly premised on the allegations that “IUON has breached its
contract ... to transfer [Onuoha] to one of IUON’s partner schools
after he successfully completed one academic year in IUON’s ...
Am. Compl. ¶ 55 (emphasis added).
Under Minnesota law,
“a breach of contract action accrues at the time of the breach.”
Estate of Riedel by Mirick v. Life Care Ret. Cmtys., Inc., 505
N.W.2d 78, 81 (Minn. Ct. App. 1993) (citations omitted). Given the
amended complaint’s express reliance on July 2007 as the date of
the alleged breach, the court finds that the breach of contract
claim accrued in July 2007 - more than six years before the
proposed amended complaint was served.
Plaintiffs argue that the claim is nevertheless timely because
Rule 15(c)(1)(B) provides that “[a]n amendment to a
pleading relates back to the date of the original pleading when ...
the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out - or attempted to be
set out - in the original pleading.”
“To arise out of the same
conduct, transaction, or occurrence, the claims must be tied to a
common core of operative facts.”
Dodd v. United States, 614 F.3d
512, 515 (8th Cir. 2010) (citations and internal quotation marks
Rule 15(c), however, “is not merely an identity of
transaction test such as the rules governing joinder of claims or
Glover v. FDIC, 698 F.3d 139, 145 (3d Cir. 2012)
(citation and internal quotation marks omitted).
facts alleged must be specific enough to put the opposing party on
notice of the factual basis for the claim.”
Dodd, 614 F.3d at 515
Here, the original complaint - filed only on behalf of Ikeri was premised on the allegations that IUON and Sallie Mae falsified
portions of the student loan application for which Ikeri co-signed.
See Compl. ¶¶ 6-14.
By contrast, the amended complaint - asserted
only on behalf of Onuoha - alleges that IUON misled Onuoha by
promising to transfer him to an American university.
Compl. ¶ 54-56.
Thus, the original complaint arises out of the
relationship between Ikeri, as co-signer of the loan, and Sallie
Mae, and the amended breach of contract claim arises out of the
allegations in the amended complaint do not arise out of the same
conduct or transaction as those of the original complaint.
Dodd, 614 F.3d at 515.
Moreover, the original complaint did
nothing to place IUON on notice of the subsequent claims of the
amended complaint, as the new claim is different in underlying
facts and legal theory than the original claims.
See Glover, 698
F.3d at 146 (“[O]nly where the opposing party is given fair notice
of the general fact situation and the legal theory upon which the
Conversely, amendments that significantly alter the nature of a
proceeding by injecting new and unanticipated claims are treated
far more cautiously.” (citations and internal quotation marks
omitted)). As a result, the amended complaint does not relate back
complaint was served more than six years after the alleged breach,
the breach of contract claim is time-barred.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
The motion to dismiss the amended complaint [ECF No. 43]
IUON also argues that the claim cannot relate back under the
requirements of Rule 15(c)(1)(C), which applies to changes in
parties. Because the court finds that plaintiffs do not meet the
threshold requirements of Rule 15(c)(1)(B), however, it need not
reach such an argument.
The motion to amend the pleadings [ECF No. 49] is denied;
The motion for extension of time and for the court to
accept late-filed responses [ECF No. 68] is granted;
The motion to strike and dismiss [ECF No. 40] is denied
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 18, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
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